A.   TREA.TISE 

ON  a?H:E   LATV   OF 

EXTRAORDINARY, 
INDUSTRIAL    AND    INTERSTATE 
CONTRACTS 


DARIUS    H.    PINGREY,  LL.  E> . 

Author  of  "  The  Law  of  Suretyship  and  Guaranty,"  etc.,  and  Professor  in 
the  Illinois  Wesleyan  University  College  of  Law, 


ALBANY,  N.  Y. 

MATTHEW  BENDER  AND  COMPANY. 

1905. 


COPYBIGHT,   1905. 

By  DARIUS  H.  PINGREY. 


T 


PREFA.CE. 


The  advancement  of  material  progress  has  developed  con- 
tractual relations  of  vast  and  complicated  nature.  In  treating 
of  Extraordinary,  Industrial  and  Interstate  Contracts,  it  has 
been  found  necessary  to  investigate  within  circumscribed  limits 
the  police  power  of  the  State  with  reference  to  contracts,  the 
prohibition  by  Congress  of  all  contracts  in  restraint  of  inter- 
state and  foreign  trade,  whether  reasonable  or  unreasonable,  the 
contracts  of  industrial  combinations,  the  violation  of  the  obli- 
gation of  contracts,  contracts  arising  in  the  board  of  trade  trans- 
actions, the  contractual  relations  arising  from  trades  unions 
and  other  relative  rights.  While  the  industrial  combinations, 
such  as  corporate  merger,  pooling  of  railroad  income  and  re- 
bates have  been  considered,  yet  the  right  to  contract  by  indi- 
viduals has  received  due  investigation. 

Many  works  on  contracts  now  before  the  public  are  classics, 
but  they  do  not  treat  the  subjects  of  contract  of  paramount 
importance  to  the  welfare  of  the  people.  So,  to  meet  this 
demand,  among  other  things  of  vital  interest,  it  has  been  the 
endeavor  to  present  the  industrial  side  of  this  all-important 
subject.  In  developing  this  work  it  was  found  that  interstate 
contracts,  of  necessity,  must  be  discussed;  so  it  was  deemed 
advisable  to  review  concisely  interstate  contracts. 

The  author  has  also  cited  the  leading  articles  on  like  ques- 
tions found  in  the  legal  magazines,  to  illustrate  the  views  of 
jurists  on  controverted  points. 

The  author  takes  this  opportunity  to  thank  the  profession, 
both  lawyers  and  judges,  for  the  cordial  reception  of  his  former 
works,  and  hopes  that  this  treatise  will  be  received  in  the  same 
friendly  spirit. 

DARIUS  H.  PINGREY. 
Bloomington,  111.,  Eeb.  1,  1905. 


/oS'^^SO 


Ti^BLE  OF  CONTENTS. 


PART  I. 

Freedom  of  Contract. 

CHAPTER  I. 

Right  to  Contract. 

Section. 
Abticle     I.  The  basis  of  all  contracts  of  a  party  sui  juris 1-4 

CHAPTER  II. 

Insane  PEUriONs. 

Article     I.  Capacity  to  contract 5-20 

II.  Ratification  and  disaffirmance 21-25 

CHAPTER  III. 

Infants. 

Article     I.  Capacity  to  contract 26-50 

II.  Ratification  of  voidable  contract 51-56 

III.  Disaffirmance  of  voidable  contracts 57-66 

IV.  Estoppel  of  infant  by  his  deceit 67-71 

V.  Guardian's  right  to  contract 72-75 

CHAPTER  IV. 

Contracts  Reqxhred  to  be  in  Writing — Statute  of  Frauds. 

Article     I.  The  statute — Sections  four  and  seventeen 76-78 

II.  Contracts  not  within  section  four 79-82 

III.  Sufficiency   of   memorandum 83-99 

IV.  Remedies  on  the  contract 100-116 

V.  Promises  by  executor  and  administrator 117-121 

VI.  Promise  '  to    answer    for    another's    debt,    default    or 

miscarriage 122-132 

VII.  Agreement  not  to  be  performed  within  a  year 133-137 

VIII.  Agreement   within   section   seventeen 138-156 

IX.  Representations  as   to   credit 157-160 


TABLE    OF    CONTENTS. 

PART  11. 

Contracts  in  Violation  of  Law. 

CHAPTER  V. 

Agreements  in  Violation  of  the  Common  Law. 

Section. 

Abticle     I.  Illegal  contracts 161-1G9 

II.  Insolvency 170-172 

CHAPTER  VI. 
Agreement  in  Violation  of  Statute. 

Abticle     I.  Violation  in  general 173-179 

II.  Violation  of  Sunday  laws 180-195 

III.  Statutes  regulating  trade  and  professions 196-205 

IV.  Usurious  contracts 206-243 

CHAPTER  VII. 

Wagers  and  Gaming  Contracts. 

Abticle     I.  Wagers  in  general 244-247 

II.  Board  of  Trade  dealings 248-257 

III.  Rights  under  gambling  contracts 258-265 

rV.  Insurance  contracts 266-269 

V.  Lottery  dealings 270-273 

PART  III. 
Contracts  Against  Public  Policy. 

CHAPTER  VIII. 
What  is  Public  Policy. 

Abticle     I.  The  general   doctrine 274-278 

11.  Contracts  for  office  and  for  influencing  official  conduct,  279-287 

CHAPTER  IX. 
Limiting  Liability  fob  Negligence. 

Abticle     I.  Liability  as  to  carriage 288-291 

II.  Limitation  by  notice  on  ticket 292-295 

III.  As  to  telegraph  and  telephone  companies 296-298 

IV.  Limiting  master's  liability 299-300 

CHAPTER  X. 
Obligations  of  Quasi-Public  Corpobations. 
Article     I.  Disabling  contracts  of  corporations  owing  a  duty  to 

the  public 301-303 

TL  Discriminations 304-308 

vi 


TABLE  OF  CONTENTS. 

CHAPTER  XI. 

Restraint  of  Trade. 

Sectioit. 

Abticlb     I.  Contracts   in    restraint   of   trade 309-315 

II.  Nature  of  the  transactions 316-319 

CHAPTER  XII. 

Industrial  Combinations. 

Article     I.  Unlawful  combinations  and  corporate  trusts 320-322 

II.  Pooling  and  merger  of  railroad  business 323  327 

III.  As  to  patent  rights 328-329 

IV.  Parties  in  pari  delicto 330-332 

CHAPTER  XIII. 

Trades  Unions. 

Abticle     I.  General  statement 333-334 

II.  Contractual  relations 335-338 


PART  IV. 

Operation  of  Contract. 

CHAPTER  XIV. 

Contractual  Relations. 

Article     I.  Contractual  relations 339-351 

II.  Promise  for  the  benefit  of  a  third  person 352-367 

III.  Joint  and  several  contracts 368-394 

CHAPTER  XV. 

Interstate  Contracts. 

Article     I.  Law  of  the  place  of  contract 395-407 

II.  Exceptions  to  the  general  rule 408-418 

III.  Enforcement  of  contract 419-422 

CHAPTER  XVI. 

Implied  Contracts. 

Article     I.  By  acts  of  the  parties 423-429 

II.  Paying   another's   debts 430-444 

III.  Recovering  money  for  the  use  of  another 445-456 

IV.  Receiving  benefits  from  another 457-485 

V.  Waiving   of    tort 486-505 

vii 


TABLE    OF    CONTENTS. 

CHAPTER  XVII. 
Assignments.  Section. 

Abticub     I.  Voluntary  assignments 50G-514 

II.  Assignment  of  wages  and  salary 515-517 

III.  Interests  that  may  be  assigned 518-527 

CHAPTER  XVIII. 

Impairment  of  the  Obligation  of  Contracts  and  the 

Right  to  Contract. 

Akticle     I.  The  contract 528-533 

II.  Corporate  charters  and  franchise 534  541 

III.  Police  power  of  the  State 542-546 

IV.  Police  power  and  interstate  commerce 547-554 

V.  Impairment  of  remedy 555-567 

PART  V. 

Termination  of  Conteact. 

CHAPTER  XIX. 
Impossible  Contracts. 

Abticle     I.  Discharge  by  impossibility  of  contract 568-579 

11.  Performance    excused    by    act    of    God    and    public 

enemy 580-588 

III.  Non-performance  of  contract  of  personal  service....   589-592 

CHAPTER  XX. 
Rescission  of  Contract. 

Abticle     I.  Right  to  rescind 593-601 

II.  Work    and    labor 602-611 

III.  Rescission  controlled  by  conditions  subsequent 612-G23 

CHAPTER  XXI. 
Statute  of  Limitations 

Abticle     I.  Discharge  by  lapse  of  time 624-627 

II.  Application  of  statute 628-638 

CHAPTER  XXII. 
Performance. 

Article    I.  Specific  mode 639-641 

II.  Decision  of  arbiter,  architect  or  engineer 642-G66 

III.  Specific  performance 667-681 

CHAPTER  XXIII. 
Breach  and  Discharge. 

Article     I.  Measure  of  damages 682-699 

II.  Composition   with    creditors 700  704 

viii 


PA.PIT   I. 


FREEDOM  OF  CONTEACT. 


Pi^I^T    I. 

CHAPTER  I. 

RigLt  to  Contract. 


ARTICLE  I. 

The  Basis  of  All  Contracts  of  a  Party  Sui  Juris. 

Section  1.  The  Power  of  the  State  Over  the  Right  to  Contract. 

2.  Regulating  the  Payment  of  Wages — Truck  System. 

3.  Truck  Laws  in  England. 

4.  Eight-Hour  Law. 

§  I.  The  power  of  the  State  over  the  right  to  contract. — 
Before  a  contract  can  be  formed,  the  parties  mnst  have  the  right 
to  contract.  For  withont  the  liberty  of  contract,  no  contrnct 
can  be  made,  and  the  attempt  would  be  a  nullity.  However, 
generally  speaking,  among  the  individual  rights  of  \the  citizen 
is  that  the  liberty  of  contract ;  yet  such  liberty  is  not  absolute 
or  universal.  The  State  may  restrain  some  individuals  from 
all  contracts,  as  well  as  all  individuals  from  contracts.  This  is 
demonstrated  by  the  denial  of  the  right  to  contract  for  the  pur- 
chase of  lottery  tickets ;  the  State  may  deny  the  right  to  minors 
to  assume  any  obligations  except  for  the  necessaries  of  exist- 
ence ;  to  the  common  carrier  the  power  to  make  any  contract 
releasing  itself  from  negligence ;  and  the  State  may  restrain  all 


§    1  FREEDOM    OP    CONTKACT.  Ch.    1 

engaged  in  any  employment  from  any  contract  in  the  course  of 
that  employment  which  is  against  public  policy.  The  posses- 
sion of  this  power  by  the  State  in  no  manner  conflicts  with  the 
proposition  that  every  citizen  has  a  right  freely  to  contract  for 
the  price  of  his  labor,  services,  or  property.^  So  a  State  cannot 
limit  the  rights  of  a  citizen  to  contract  with  reference  to  his 
property  only  when  such  limitation  tends  to  promote  the  public 
good  in  some  way.  Otherwise  it  is  an  unwarranted  interference 
with  his  rights.^  Public  policy  requires  that  all  persons  of  full 
age  and  of  competent  understanding  shall  be  allowed  the  fullest 
liberty  of  contracting,  and  their  contracts  entered  into  freely 
and  voluntarily  shall  be  held  sacred  and  shall  be  enforced  by 
the  courts  if  necessary.'''  This  liberty  to  contract  is  subject  to 
the  following  restrictions :  1.  The  contract  must  be  one  which 
the  law  does  not  prohibit;  2.  the  parties  must  be  legally  com- 
petent to  contract ;  3.  the  contract  must  be  in  form,  if  the  law 
requires  it;  4.  the  thing  to  be  done  must  not  be  prohibited;  5. 
the  consideration  must  be  legal  and  sufficient. 

Whenever  a  law  is  unreasonable,  arbitrary  and  oppressive, 
and  interferes  with  the  right  to  contract  in  a  lawful  manner, 
and  prevents  a  person  from  entering  into  a  lawful  employment 
in  a  lawful  manner,  it  is  nnconstitutional.  No  act  is  valid  which 
unlawfully  invades  the  privacy  of  the  home  without  due  pro- 
cess of  law,  deprives  the  citizen  of  the  full  and  profitable  use  of 

1.  Frisbie  v.   United   States,   157  Co.,    18    R.    I.    IG,    25    A.    246,    17 

U.   S.    160,   15  Sup.   Ct.   532.     See,  L.  R.  A.  S5G;  Shaffer  v.  Mining  Co., 

also,  Wolcott  V.  Fiissell,  134  Mass.  55   Md.   74;    Ritchie  v.   People,   155 

1,  45  Am.  Rep.  272;   Lecp  v.  Rail-  III.  98,  40  N.  E.  454,  29   L.   R.   A. 

road  Co.,  58  Avk.  407,  25  S.  W.  75,  79,  40  Am.  St.  Rep.  310;  Kelleyville 

23  L.  R.  A.  264,  41   Am.   St.   Rep.  Coal  Co.  v.  Hairier,  207  111.  624,  69 

109;   State  v.  Coal  Co.,  36  W.  Va.  N.  E.  927,  99  Am.  St.  Rep.  240. 
802,  15  S.  E.  1000,  17  L.  R.  A.  385;  2.  Dennis    v.    Moses,     18    Wash. 

Hancock  v.  Yaden,  121  Ind.  366,  23  537,  52  P.  333,  40  L.  R.  A.  302. 
N.  E.  253,  0  L.  R.  A.  576,  16  Am.  3.  Printing,  etc.,  Registering  Co. 

St.  Rep.  396;  State  v.  Brown,  etc.,  v.  Sampson,  L.  R.  19,  Eq.  462. 


Ch.    1  KIGHT    TO    CONTRACT.  §    1 

his  property,  and  of  his  right  to  labor  at  any  lawful  work  when 
and  where  he  pleases  or  infringes  upon  his  rights  of  personal 
liberty.^ 

The  provision  of  the  Fourteenth  Amendment  to  Federal 
Constitution,  was  intended  to  guarantee,  not  that  every  person 
shall  have  exactly  the  same  privileges  as  every  other  person, 
regardless  of  difference  in  conditions,  and  independent  of 
proper  and  reasonable  classification,  but  that  every  person  shall 
be  given  the  same  rights  and  privileges  under  the  same  circum- 
stances and  conditions.  But  more  ordinary  classification  can- 
not be  justified ;  but  where  there  is  a  reasonable  distinction  be- 
tween classes  of  citizens,  the  legislature  has  a  right  to  recognize 
duch  classification,  and  to  make  different  rules  with  respect  to 
such  classes,  so  long  as  it  does  not  transgress  those  fundamental 
rights  of  life,  liberty  and  the  pursuit  of  happiness.^  Therefore, 
a  State  can  make  a  distinction  in  favor  of  veteran  volunteer  fire- 
men as  against  those  not  veterans,  and  give  preferences  in  em- 
ploying them  to  fill  public  office.  Such  preferment  is  justified 
by  public  policy.^  So  the  classification  of  veterans  of  the  civil 
war  is  not  arbitrary.  Political  employment  is  not  of  the  essence 
of  civil  rights  of  life,  liberty  or  property.  Such  preference  is 
based  upon  actual  service  to  the  State,  which  the  State  has  the 
right  to  compensate.'^ 

4.  State    V.    Broadbelt,    59    Md.  5.  People  v.  Orange  County  Con- 

565;    Luman    v.    Hitchens,    90   Md.  struction  Co.,  175  N.  Y.  84,  G7  N. 

14,  44  A.    1051,  46  L.   R.  A.   393;  E.   129. 

Bailey  v.  People,  190  111.  28,  GO  N.  6.  People  v.  Folks,  85  N.  Y.  S. 

E.  98,  54  L.  R.  A.  838,  83  Am.  St.  1100. 

Rep.  116;  Lawton  v.  Steele,  152  U.  7.  Opinion  of  Justices,  166  Mass. 

S.  136,  14  S.  Ct.  499;  Ex  parte  Lee,  589,  44  N.  E.  625,  34  L.  K.  A.  58. 

96  Cal.  354,  31  P.  245,  24  L.  R.  A.  See   Should   There   Be   Freedom  of 

195,   31    Am.   St.   Rep.   218;    In   re  Contract;    4    Columbia    L.    Review, 

Hong    Wah,     82     Fed,     Rep.     623;  429. 
Squire  v.  Tellier,  185  Mass.   18,  69 
N.  E.  312. 


§    2  FREEDOM    OF    CONTRACT.  Ch.     1 

§  2.  Regulating  the  payment  of  wages  —  Truck  system. — 

In  many  States  laws  have  been  enacted  to  protect  tlie  employes 
of  corporations  in  payment  of  salaries  in  scrip  or  in  goods 
from  the  stores  of  the  corporations.  But  they  have  generally 
been  held  unconstitutional  as  restricting  the  right  to  contract. 
It  is  held  an  encroachment  upon  the  just  liberty  and  rights  of 
the  workman  and  his  employer,  or  those  who  may  be  disposed 
to  employ  hiju,  for  the  legislature  to  interfere  with  the  free- 
dom of  contract  between  them,  as  such  interference  hinders  the 
one  from  working  at  what  he  thinks  proper,  and  at  the  same 
time  prevents  the  other  from  employing  whom  he  chooses.* 
And  so  a  statute  is  unconstitutional  which  provides  that  no  em- 
ployer shall  impose  a  fine  upon  or  withhold  the  wages  or  any 
part  of  the  wages  of  a  workman  engaged  in  weaving  for  im- 
perfections that  may  arise  during  the  process  of  weaving.  Be- 
cause the  right  to  employ  weavers,  and  to  make  proper  contracts 
with  them,  is  protected  by  the  constitution,  and  a  statute  which 
forbids  the  making  of  such  contracts,  or  attempts  to  nullify 
them,  or  impair  the  obligations  of  them,  violates  the  funda- 
mental principles  of  right  which  are  expressly  recognized  in  the 
constitution.^ 

In  some  of  the  States  it  is  held  that  the  legislature  has  au- 
thority to  pass  an  act  requiring  the  owners  of  mines  to  pay  for 

1.  State  V.  Goodwill,  33  W.  Va.  147  111.  66,  35  N.  E.  62,  22  L.  R.  A. 

179,   10  S,  E.  285,  6  L.  R.  A.  621,  340,  37  Am,  St.  Rep.  206;  Compare 

and  note,  25  Am.  St.  Rep.  863  and  Hancock  v.  Yaden,  121  Ind.  366,  23 

note;  State  v.  Loomis,  115  Mo.  307,  N.  E.  253,  6  L.  R.  A.  578,  16  Am. 

22  S.  W.  452,  21  L.  R.  A.  789  and  St.   Rep.  396;   State  v.  Peel  Splint 

note;    Godcharlcs  v.   Wigeman,   113  Coal  Co.,  36  VV.  Va.  802,   15  S.  E. 

Pa.  St.  431,  6  A.  354;  State  v.  Coal  1000,  17  L.  R.  A.  385. 

and  Coke  Co.,  33  W.  Va.  188,  10  S.  2.  Commonwealth   v.    Perry,    155 

E.  288,  6  L.  R.  A.  359,  25  Am.  St.  Mass.  117,  28  N.  E.  1126,  14  L.  R. 

Rep.    891;    Ramsey   v.   People,    142  A.   325  and  note,   31  Am.   St.  Rep. 

111.  380,  32  N.  E.  364,  17  L.  R.  A.  533. 
853;   Braceville  Coal  Co.  v.  People, 


Ch.     1  EIGHT    TO    CONTRACT.  §    2 

mining  coal  every  t:wo  weeks  in  lawful  money  of  the  United 
States.^  And  so  a  law  has  been  declared  constitutional  which 
prohibits  a  corporation  or  person  to  pay  in  scrip  or  anything 
except  in  lawful  money.* 

If  the  charter  is  given  with  a  reservation  that  the  legis^ 
lature  may  amend  it,  then  the  legislature  may  regulate 
the  payment  of  wages  by  corporation,  and  forbid  the 
parang  of  scrip  or  compel  the  corporation  to  pay  weekly,^ 
and  to  pay  back  salary  when  employe  is  dismissed,  on  day  of 
dismissal.®  So  it  is  held  a  statute  is  valid  which  requires  pay- 
ment of  wages  in  money  at  the  option  of  the  employe.^  In 
this  case  the  court  of  Tennessee  did  not  rest  the  case  on  the 
police  power  of  the  State,  but  upon  appeal  the  United  States 
Supreme  Court  sustains  the  statute  as  an  excercise  of  the  police 
power,  which  undoubtedly  is  the  correct  doctrine.  And  so  a 
statute  is  valid  which  requires  the  weekly  payment  of  wages  f 
and  some  courts  hold  that  a  statute  is  valid  which  requires  the 
weighing  of  coal  for  the  purpose  of  fixing  wages,  before  it  is 
screened;^  but  this  doctrine  is  denied  in  other  jurisdictions.-^® 
This  class  of  legislation  is  common,  and  its  validity  is  attacked 

3.  Haneock  v.  Yaden,  121  Ind.  L.  R.  A.  504,  62  Am.  !St.  Rep.  1154 
366,  23  N.  E.  253,  6  L.  R.  A.  578,        and  note. 

16   Am.    St.    Rep.    396.      See,    also,  7.  Knoxville  Iron  Co.  v.  Harbi- 

Shaffer  v.  Mining  Co.,  55  Md.  74;  son,  183  U.  S.  13,  22  S.  Ct.  1;  Har- 

In  re  House  Bill,  23  Colo.  504,  48  P.  bison    v.    Knoxville    Iron    Co.,    103 

612.  Tenn.  421,  53  S.  W.  955,  56  L.  R.  A. 

4.  State  V.  Peel  Splint  Coal  Co.,  316,  76  Am.  St.  Rep.  682;  Compare 
36  W.  Va.  802,  15  S.  E.  1000,  17  L.  Kellyville  Coal  Co.  v.  Harrier,  207 
R.  A.  385.  111.  624,  69  N.  E.  927,  99  Am.  St. 

5.  State  V.  Brown,  etc.,  Mfg.  Co.,  Rep.  240. 

18  R.  I.  10,  25  A.  246,  17  L.  R.  A.  8.  In   re   House  Bill,    163   Mass. 

856;  Leep  v.  Railroad  Co.,  58  Ark.  589,  40  N.  E.  713,  28  L.  R.  A.  344. 

407,  25  S.  W.  75,  23  L.  R.  A.  264,  9.  State  v.  Wilson,  61  Kan.  32, 

41  Am.  St.  Rep.  109.  64  P.  23,  47  L.  R.  A.  71. 

6.  St.  Louis,  etc.,  R.  R.  Co.  v.  10.  In  re  Preston,  63  Ohio  St. 
Paul,  64  Ark.  83,  40  S.  W.  705,  37  428,  59  N.  E.  101,  81  Am.  St.  Rep. 

642. 


§    2  FKEEDOM    OF    CONTRACT.  Ch.    1 

as  in  violation  of  the  guarantee  of  equal  protection.  This  legis- 
lation is  illustrated  by  the  statutes  fixing  hours  of  labor,  pro- 
viding for  the  payment  of  wages  in  money  only,  and  statutes 
controlling  the  method  of  fixing  wages,  as  by  requiring  that 
where  coal  is  mined  by  weight,  it  must  be  weighed  before  screen- 
ing. These  are  all  statutes  abridging  the  right  of  the  citizen  to 
make  contracts,  a  right  which  is  within  the  protection  of  the 
Fourteenth  Amendment  to  the  Federal  Constitution.  The 
liberty  contemplated  in  this  provision  means  not  only  the  right 
of  freedom  from  servitude,  imprisonment  or  physical  restraint, 
but  also  the  right  to  use  one's  faculties  in  all  lawful  ways,  to  live 
and  work  where  he  chooses,  to  pursue  any  lawful  calling  or  pro- 
fession, to  make  all  proper  contracts  in  relation  thereto,  and  to 
enjoy  the  legitimate  fruits  thereof.  And  to  control  this  right 
of  liberty  will  be  in  violation  of  constitutional  rights  except 
under  the  police  power  of  the  State.^^  But  such  statutes  are 
sustained  on  other  grounds,  but  incorrectly.^^  The  principle  of 
these  cases  has  been  upheld  by  the  United  States  Supreme 
Court  as  an  exercise  of  the  police  power  alone.  Thus,  where 
the  police  power  is  not  applicable  an  attempt  to  fix  the  wages 
of  employes  on  city  contracts  at  the  rate  generally  paid  to  em- 
ployes in  like  vocations,  is  invalid.^^  If  the  legislature  under- 
takes to  provide  that  persons  following  some  lawful  trade  or 
profession  shall  not  contract  as  they  see  fit,  or  in  any  other  way 
make  such  use  of  their  property  as  is  permissible  to  others, 
this  would  transcend  the  limits  of  legislative  power,  unless  the 
police  power  of  the  State  is  applicable.    And  this  may  explain 

11.  See  Knoxville  Iron  Co.  v.  N.  E.  C53,  G  L.  R.  A.  57G,  IG  Am. 
Harbison,  183  U.  S.  13,  22  S.  Ct.  St.  Rep  34G;  Compare  Kellyville 
1;  Holden  v.  Hardy,  1G9  U.  S.  3GG,  Coal  Co.  v.  Harrier,  207  III.  G24,  G9 
18  S.  Ct.  383.  N.  E.  927,  99  Am.  St.  Rep.  240. 

12.  Harbison   v.   Knoxville   Iron  13.  People  v.  Coler,  IGG  N  Y.  1, 
Co.,  103  Tenn.  421,  53  S.  W.  734,  5G  59  N.  E.  716,  52  L.  R.  A.  814,  82 
L.  R.  A.  31G,  7G  Am.  St.  Rep.  G82;  Am.  St.  Rep.  G05  and  note. 
Hancock  v.  Yaden,  121  Ind.  3GG,  23 


Ch.    1  RIGHT    TO    CONTKACT.  §    2 

a  seeming  conflict  of  authoritj  in  two  cases,  where  one  is  con- 
trolled by  the  police  power  and  the  other  not,  which  is  often 
lost  sight  of,  even  by  judges.  The  decisions  are  in  confusion 
and  irreconcilable.  So  it  is  held  that  a  statute  compelling 
employers  to  make  weekly  payment  of  wages  is  unconstitutional, 
as  infringing  the  right  of  private  contract,  and  as  depriving 
persons  affected  thereby  of  their  property  without  due  process 
of  law.'^  In  the  Indiana  case,^^  the  judge,  speaking  of  In  re 
House  Bill,^^  says  that  the  constitution  of  Massachusetts  is 
more  comprehensive  than  that  found  in  the  constitution  of 
some  of  the  other  States,  and  the  provision  passed  upon  in  sup- 
porting the  view  expressed  is  radically  different  and  broader 
than  the  provision  of  the  Indiana  constitution.  The  court 
further  says  that  the  Rhode  Island  case^^  rests  upon  the  theory 
that  the  statute  was  but  an  amendment  to  the  charter  of  a  cor- 
poration under  the  reserved  power  of  the  legislature  to  amend. 
And  the  case  of  Skinner  v.  Garnett^^  is  of  little  value  on  the 
point  discussed  because,  (1)  it  involves  the  payment  of  wages 
monthly,  and  (2)  because  the  decision  turns  on  substantially 
the  same  grounds  as  the  Rhode  Island  case. 

The  legislature  cannot  regulate  rate  of  wages  in  city  con- 
tracts: (1)  because  it  is  an  attempt  to  force  a  municipality  to 
frame  its  contracts  in  the  interest  of  individuals  or  classes,  and 
thus  to  that  extent,  diverts  its  money  to  private  purposes;  (2) 
because  it  invades  the  rights  of  liberty  and  property  by  denying 

14.  Republic    Iron,    etc.,    Co.    v.  15.  Republic    Iron,    etc.,    Co.    v. 

State,  IGO  Ind.  379,  63  N.  E.  1005,  State,  160  Ind.  379,  66  N.  E.  1005, 

62  L.  R.  A.  136;  Braceville  Coal  Co.  62  L.  R.  A.  136. 

V.  People,  147  111.  66,  35  N.  E.  62,  16.   163  Mass.  589,  40  N.  E.  713, 

22  L.   R.  A.   340,   37   Am.  St.  Rep.  28  L.  R.  A.  344. 

206;   Commonwealth  v.  Isenberg,  4  17.  State    v.    Brown    Mfg.    Co., 

Pa.   Dist.   Rep.   579;    San   Antonia,  18  R.  I.  17,  25  A.  246,  17  L.  R.  A. 

etc.     Co.     V.     Wilson       (Tex.     Civ.  856. 

App.),    19    S.    W.    910;     Compare  18.  96  Fed.  Rep.  735. 
Skinner   v.   Garnett,   96    Fed.   Rep. 
738. 


§    2  FREEDOM    OF    CONTRACT.  Ch.    1 

to  the  municipality  and  to  the  employers  of  labor  on  city  con- 
tracts the  right  to  agree  with  their  employes  upon  the  measure 
of  their  compensation;  (3)  because  it  arbitrarily  confiscates  to 
the  municipality  all  rights  of  property  of  the  employers  under 
their  contract  for  their  failure  to  comply  with  the  terms  of  the 
statute.  Such  contracts  entered  into  cannot  be  said  to  be  volun- 
tary and  fall  with  the  statute,  if  already  made.^® 

It  is  held  that  the  better  rule  is  that  a  statute  requiring  the 
payment  of  wages  in  money  is  valid  as  an  exercise  of  the  police 
power.-*'  But  this  is  not  the  rule  in  Illinois  and  Missouri.  The 
Illinois  statute^^  provides  that  no  deduction  shall  be  made  in 
an  employe's  wages  except  by  the  payment  of  money  or  check 
without  discount.  This  is  so  ordered  to  prevent  the  exercise 
of  truck  stores  in  paying  wages  by  goods  and  the  like.  But  the 
court  holds  that  such  a  statute  is  unconstitutional  as  limiting  the 
right  to  contract.^^  It  w^as  not  upheld  as  coming  within  the 
police  power  of  the  State. 

The  Missouri  Supreme  Court  holds  with  the  Illinois  doctrine, 
that  such  a  statute  is  a  limit  on  the  right  to  contract  and,  there- 
fore, void.^^  Many  of  the  statutes  have  been  held  unconsti- 
tutional because  of  class  legislation.  When  scrip  must  be  re- 
deemed in  cash,  the  rule  in  Illinois  and  Missouri,  is  that  such 
statute  is  unconstitutional  as  limiting  the  right  to  contract.^* 

19.  People  V.  Coler,  166  N.  Y.  1,  22.  Kellyville  Coal   Co.   v.   Har- 
59  N.  E.  716,  52  L.  R.  A.  814,  82  rier,  207  111.  624,  69  in.  E.  927.    See, 
Am.   St.   Rep.   605   and   note.      See,  also,  Connelly  v.  Union  Sewer  Pipe 
also,    People    v.    Coler,    166    N.    Y.  Co.,  184  U.  S.  540,  22  S.  Ct.  431. 
144,  59  N.  E.  776.  23.  State    v.    Missouri    Tie    and 

20.  Knoxville  Iron  Co.  v.  Harbi-  Lum.  Co.,  80  S.  W.  933. 

son,  183  U.  S.  13,  22  S.  Ct.  1,  103  24.  Kellyville  Coal  Co.   v.   Har- 

Tenn.  421,  53  S.  W.  734,  56  L.  R.  A.  rier,  207  111.  624,  69  N.  E.  927,  99 

316,  76  Am.  St.  Rep.  682.  Am.  St.  Rep.  440;  State  v.  Missouri 

21.  Kurd's  111.  St.  (1901),  p.  Tie  and  Lum.  Co.  (Mo.),  80  S.  W. 
879,  sees.  6,  7.     See  Kellyville  Coal  933. 

Co.  V.  Harrier,  207  HI.  624,  69  N. 
E.  927,  99  Am  St.  Rep.  240. 

10 


Ch.  RIGHT    TO    CONTRACT.  §§    3,  4 

§  3.  Truck  laws  in  England —  In  England  the  truck  laws 
are  valid  and,  of  course,  not  in  accord  with  the  general  doctrine 
in  the  United  States.^ 

The  old  truck  laws  are  many  and  date  from  about  the  year 
1464.^  They  were  first  applied  to  one  branch  of  manufacture, 
and  then,  as  experience  and  the  progress  of  manufactures  dic- 
tated, to  others,  until  they  embrace  nearly  the  whole  manu- 
factures of  England.  They  establish  the  obligation  and  pro- 
duced the  custom  of  uniformly  paying  the  whole  wages  of  labor- 
ers in  the  current  coin  of  the  realm.  All  these  laws  have  been 
consolidated.^ 

These  acts  were  founded  upon  the  principle  that  where  two 
classes  of  persons  are  dealing  together  and  one  class  is,  generally 
speaking,  weaker  than  the  other  and  liable  to  oppression,  either 
from  natural  or  accidental  causes,  the  law  should,  as  far  as 
possible,  redress  the  inequality  by  protecting  the  weak  against 
the  strong.  On  this  principle  rests  the  protection  thrown 
around  infants  and  persons  of  unsound  or  weak  mind.  But  in 
the  United  States  such  inequality  is  not  recognized  as  far  as 
corporations  and  laborers  are  concerned. 

And  so  in  England  a  court  refused  to  enforce  a  covenant  be- 
tween a  mariner  and  his  employer  to  the  effect  that  the  former 
should  not  be  entitled  to  any  part  of  his  wages  unless  the  ship 
should  return  to  the  last  port  of  discharge,  because  the  relative 
situation  of  the  parties  and  the  nature  of  the  agreement,  pro- 
duced oppression  on  the  weaker,  and,  therefore,  the  contract 
was  not  enforceable  in  any  court  governed  by  the  rules  of  nat- 
ural justice* 

§  4.  Eight-hour  law. —  Class  legislation  is  not  constitutional. 
The  right  to  contract  in  legitimate  business  is  recognized  by  the 
constitutional  guaranties.      Competent  parties  cannot  be   de- 

1.  Archer  v.  James,  2  Best  &  S.  3.   1  &  2  Wm.  IV,  ch.  37. 
73.  4.  The  Juliana,  2  Dod.  504. 

2.  4  Edw.  IV. 

11 


§    4  FREEDOM    OF    CONTEACT.  Cll.    1 

prived  of  the  right  to  contract  as  they  see  fit  iii  legitimate  chan- 
nels. Each  citizen  has  the  right  to  pursue  his  own  advance- 
ment and  happiness  in  his  own  way,  subject  only  to  the  restraint 
necessary  to  secure  the  same  right  to  all  others,  as  all  are  equal 
before  the  law.  Every  man  has  the  right  to  use  his  powers  and 
faculties,  and  to  adopt  and  pursue  such  a  vocation  as  he  may 
clioose,  subject  only  to  the  restraint  necessary  to  secure  the  com- 
mon welfare.^  The  right  to  contract  necessarily  includes  tlie 
right  to  fix  the  price  at  which  labor  will  be  performed  and  the 
mode  and  time  of  payment.  Each  is  an  essential  element  of  the 
right  to  contract,  and  whoever  is  restricted  in  either,  as  the  same 
is  enjoyed  by  the  community  at  large,  is  deprived  of  liberty  and 
property.^ 

Tlierefore,  a  law  which  provides  that  for  all  classes  of  mechan- 
ics, servants,  and  laborers,  except  farm  or  domestic  laborers,  a 
day's  work  shall  not  exceed  eight  hours,  and  that  for  working  any 
employe  over  eight  hours  the  employer  shall  pay  extra  com- 
pensation, is  unconstitutional  because  it  descriminates  against 
farm  and  domestic  laborers  and  is  special  legislation,  and  de- 
nies the  right  to  parties  to  contract  with  reference  to  compensa- 
tion for  services.^  And  such  Jaw  cannot  be  npheld  as  a  police 
regulation,  because  it  docs  not  operate  to  promote  the  health, 
safety,  or  welfare  of  society.'* 

1.  Froier  v.  People,  141  111.  171,  Low  v.  Rees  Printing  Co.,  41  Neb. 

31  N.  E.  395,  IG  L.  R.  A.  492  and  127,  59  N.  W.  362,  24  L.  R.  A.  702, 

note;  Commonwealth  v.  Perry,  155  43    Am.    St.    Rep.    670;    People    v. 

Mass.  117,  28  N.  E.  112G,  14  L.  R.  Coler,  166  N.  Y.  1,  59  N.  E.  716,  52 

A.   325   ad   note,    31    Am.   St.    Rep.  L.  R.  A.  814,  82  Am.  St.  Rep.  005 

533;    People   v.   Gillson,   109  N.   Y.  and   note. 

389,  17  N.  E.  343;  Slaughter  House  3.  Low  v.  Rees  Printing  Co.,  41 

Cases,   16  Wall.    (U.  S.)    36;   God-  Neb.  127,  59  N.  W.  362,  24  L.  R.  A. 

Charles    v.    Wigeman,    113    Pa.    St.  702,  43  Am.  St.  Rep.  607;   Ritchie 

431,   G  A.   354;    State   v.   Goodwill,  v.  People,  155  111.  98,  40  N.  E.  454, 

33  W.  Va.  179,  10  S.  E.  285,  6  L.  29  L.  R.  A.  79,  46  Am.  St.  Rep.  315. 

R.  A.  621  and  note,  25  Am.  St.  Rep.  4.  Millett  v.  People,  117  111.  294, 

863  and  note;  People  v.  Grsut,  179  7  N.  E.  031,  57  Am.  St.  Rep.  869; 

N.  Y.  417.  Frorer  v.   People,   141   111.    171,   31 


2.  In   re  Jacobs,   98   N.  Y.    106; 


12 


Ch.    1  EIGHT    TO    CONTRACT.  §    4 

The  Utah  Constitution  provides  that  "eight  honrs  shall  con- 
stitute a  day's  work  on  all  work  or  undertakings  carried  on  or 
aided  by  the  State,  county  or  municipal  governments;  and  the 
legislature  shall  pass  laws  to  provide  for  the  health  and  safety 
of  employes  in  factories,  smelters  and  mines.'"^  Under  this 
provision  a  statute  providing  that  "the  period  of  employment  of 
workingmen  in  all  underground  mines  shall  be  eight  hours  per 
day,  except  in  case  of  emergency,  where  life  or  property  is  in 
imminent  danger,"  is  valid  and  not  opposed  to  the  Federal 
Constitution  ;  and  the  State  statute  may  make  it  a  misdemeanor 
to  employ  a  person  for  a  longer  time.*'  This  is  the  doctrine  also 
of  the  United  States  Supreme  Court,  which  passed  upon  the 
validity  of  the  Colorado  statute,  and  held  that  the  law  was  an 
exercise  of  the  State's  police  power.  Justice  Brown  said  in  bis 
opinion  that  it  was  not  the  intention  of  the  court  to  pass  gen- 
erally upon  the  constitutionality  of  eight-hour  laws,  but  that 
lin  so  far  as  State  laws  were  enacted  for  the  protection  of  the 
'lives,  the  health  or  the  morals  of  a  community,  they  are  valid 
under  the  police  power  of  the  State;  that  there  can  be  no  doubt 
of  the  exceptional  and  unhealthful  character  of  work  in  smelt- 
ers or  mines,  because  of  bad  air,  high  temperature  and  noxious 
gases,  and  hence  the  Colorado  law  was  valid  and  constitutional.''' 

And  so  where  the  laborer  is  working  for  the  State  or  a  crea- 
tion of  a  State,  the  legislature  may  prescribe  the  number  of 
hours  which  shall  constitute  a  day's  labor.     And  a  statute  is 

N.    E.    395,    IG   L.    R.    A.    492    and  5.  Utah  Const.,  sec.  G. 

note;  Stato  v.  Loomis,  115  Mo.  307,  6.  State  v.  Holden,   14  Utah,  71, 

22  S.  W.  350,  21  L.  R.  A.  789  and  4G  P.  75G,  37  L.  R.  A.  103. 

note;  Ex  parte  Kubacic,  85  Cal.  274,  7.  Holden   v.    Hardy,    109    U.    S. 

24  P.  737,  20  Am.   St.  Rep.  22G,  9  3G0.  18  S.  Ct.  383.     See,  also.  In  re 

L.  R.  A.  482;   In  ve  Jacobs,  98  N.  Ten  Hour  Law    (R.  I.),  54  A.  GOO, 

Y.  lOG;  People  v.  Gillson,  109  N.  Y.  Gl  L.  R.  A.  G12;  Wenham  v.  State 

389,   17  N.  E.  343,  4  Am.  St.  Rep.  (Neb.),  91  N.  W.  421,  58  L.  R.  A. 

4G5;  Ritchie  v.  People,  155  111.  98,  825;    Atkin    v.   Kansas,    191    U.    S. 

40   N.   E.  4.54,   29   L.   R.  A.  79,  46  207,  24  S.  Ct.  124. 

Am.  St.  Rep.  315. 

13 


§    4  FREEDOM    OF    CONTRACT.  Ch.    1 

constitutional  which  declares  that  no  one  undertaking  to  per- 
form work  for  the  State  or  one  of  its  municipalities  shall  per- 
mit or  require  an  employe  on  such  work  to  labor  in  excess  of 
eight  hours  each  day,  because  the  State  is  a  guardian  and 
trustee  of  the  people,  to  prescribe  conditions  upon  which  it  will 
permit  Avork  to  be  done.  Regulations  on  this  subject  suggest 
only  considerations  of  public  policy.  No  one  is  entitled,  of  ab- 
solute right  and  part  of  his  liberty,  to  perform  labor  for  the 
State ;  and  no  contractor  for  public  work  can  excuse  violation 
of  his  lawful  agreement  with  the  State  by  doing  that  which  the 
statute  under  which  he  proceeds  distinctly  forbids  him  to  do.^ 
But  where  the  police  power  of  the  State  and  public  policy  do 
not  control,  such  a  statute  to  regulate  the  hours  of  private  em- 
ployment is  unconstitutional.^  But  under  the  police  power  or 
where  public  policy  control,  such  statutes  are  constitutional.^'^ 
In  Atkins  v.  Kansas,^^  a  statute  which  makes  it  a  criminal 
offense  for  a  contractor  for  public  work  to  permit  or  require  an 
employee  to  labor  thereon  more  than  eight  hours  a  day,  is  con- 
stitutional. Neither  the  constitutional  guaranty  of  freedom  to 
contract,  nor  the  guaranty  of  the  equal  protection  of  the  laws, 
is  deemed  to  be  violated  by  such  a  statute. 

8.  Atkin  v.  Kansas,  191  U.  S.  Electrical  Supply  Co.,  IGO  Ind.  338, 
207,  24  S.  Ct.  124;  Compare  People  60  N.  E.  895,  98  Am.  St.  Rep.  325. 
V.  Orange  County  Construction  Co.,  10.  Commonwealth  v.  Hamilton 
175  N.  Y.  84,  67  N.  E.  i29;  Cleve-  Mfg.  Co.,  120  Mass.  383;  State  v. 
land  V.  Construction  Co.,  67  Ohio  Buchanan,  29  Wash.  602,  70  P.  52, 
St.  197,  65  N.  E.  885,  59  L.  R.  A.  59  L.  R.  A.  342,  92  Am.  St.  Rep. 
775,  93  Am.  St.  Rep.  670;  Ex  parte  930;  Wenham  v.  State  (Neb.), 
Kuback,  85  Cal.  29,  24  P.  737.  91    N.   W.   421,   58   L.   R.   A.    825; 

9.  In  re  Eight  Hours  Bill,  21  Holden  v.  Hardy,  169  U.  S.  366,  18 
Colo.  29,  39  P.  328 ;  Fiske  V.  People,  S.  Ct.  383;  Compare  Ritchie  v. 
188  111.  366,  58  N.  E.  985;  52  L.  R.  People,  155  111.  98,  46  Am.  St.  Rep. 
A.  274;  In  re  Morgan,  26  Colo.  415,  315,  40  N.  E.  454,  29  L.  R.  A.  79; 
58  P.  1071  47  L.  R.  A.  52,  77  Am.  State  v.  Legund  (Md.  Bait.  Ct.),  35 
St.    Rep.    269;     Street    v.    Varney  Chi.  L.  News,  152. 

11.   191  U.  S.  207,  24  S.  Ct.  124. 

14 


Ch.     1  EIGHT    TO    CONTRACT.  §    4 

In  New  York  a  similar  statute  is  held  void/-  on  the  ground 
that  the  police  power  of  the  State  does  not  extend  to  such  inter- 
ference with  the  employment  of  labor  by  independent  contrac- 
tors though  they  are  engaged  upon  a  public  work.  The  Xew 
York  court  says  that  if  the  employes  were  working  directly  for 
the  State,  the  State  might  regulate  their  hours  and  every  other 
detail  of  their  work,  but  the  doctrine  is  stated,  that  the  State  has 
no  greater  right  than  a  citizen  has  to  control  the  details  of  the 
work  when  let  out  the  performance  thereof  to  a  contractor,  ex- 
cept so  far  as  it  reserves  such  right  by  the  contract. 

The  United  States  Supreme  Court  holds  differently,  and  says 
as  the  work  is  done  for  the  State,  or  for  one  of  its  municipalities, 
the  statute  is  valid.  It  belongs  to  the  State  as  the  guardian  and 
trustee  for  its  people,  to  control  its  affairs,  to  prescribe  the 
conditions  upon  which  it  will  permit  public  work  to  be  done  on 
its  behalf,  or  on  behalf  of  its  municipalities.  No  court  has 
authority  to  review  the  State's  action  in  that  respect.  Regula- 
tions on  this  subject  suggest  only  consideration  of  public  policy. 
No  contractor  for  public  work  can  excuse  a  violation  of  his 
agreement  with  the  State  by  doing  that  which  the  statute  under 
which  he  proceeds  distinctly  and  lawfully  forbids  him  to  do. 

It  seems  that  the  highest  court  of  any  State  can  settle  this 
question  for  its  own  jurisdiction.  If  the  State  does  hold  such 
a  statute  valid,  the  Federal  court  will  not  interfere,  as  it  holds 
that  the  Federal  constitution  is  not  violated.  But  if  the  State 
court  holds  such  a  statute  unconstitutional  because  it  is  not  the 
proper  exercise  of  the  police  power,  then  can  this  question  reach 
the  Federal  court  ?  And  if  such  decision  should  rest  upon  a 
Federal  question,  and  is  consonant  with  the  Federal  right 
claimed  as  against  the  State,  this  would  preclude  the  Federal 
court  from  interfering. 

12.  People     V.     Orange     County    N.  E.  129;  People  v.  Grout,  179  N. 
Road  Const.  Co.,  175  N.  Y.  84,  67  Y.  417. 


15 


f 
1 


CHAPTER  II. 

Insane  Persons. 


ARTICLE  I. 

Capacity  to  Contract. 

Section  5.  Insanity. 

G.  Wliat  is  Capacity  to  Contract. 

7.  Old  Age,  and  Weakness  of  Mind  as  Incapacity. 

8.  Insane    Delusion. 

9.  Void,  Voidable,  and  Valid  Contracts. 

10.  Restoration  of  Reason. 

11.  Necessaries. 

12.  After  Inquisition  and  Finding  of  Lunacy. 

13.  Marriage — Insanity  of  Party. 

14.  Bills  and  Notes  of    Insane  Persons. 

15.  Partnership. 

IC).  Life   Insurance — No  Suicide  Clause  in  Policy. 

17.  Life  Insurance — Impulsive  Insanity. 

18.  The  Question  of  Right  and  Wrong — English  Doctrine. 

19.  American  Doctrine. 

20.  Die  by  Suicide,  Sane  or  Insane. 

§  5.  Insanity. —  It  is  the  unbroken  current  of  opinion  of 
both  physician  and  courts,  running  back  for  more  than  a  cen- 
tury, that  a  person  may  be  deranged,  may  be  non  compos  mentis, 
or  of  unsound  mind,  though  not  totally  deprived  of  memory 
and  understanding.  To  give  a  definition  of  insanity  is  im- 
practicable, or  to  describe  the  different  kinds  of  insanity,  be- 
cause the  several  varieties  pass  into  each  other  imperceptibly 
and  more  frequently  than  insanity  into  a  healthy  and  sound 
mind.  All  writers  and  jurists  agree  that  an  immovable  delu- 
sion as  to  facts  past  or  present  is  not  merely  a  symptom  of  in- 
sanity, but  is  in  fact  insanity  or  the  effect  of  an  unsound  mind. 

16 


Ch.    2  INSANE    PERSONS.  §    5 

Insanity,  except  in  case  of  idiots,  who  labor  under  a  perpetual 
infirmity  from  their  birth,  implies  a  derangement  in  somo 
shape  or  fonn  of  the  intellect. 

As  to  whether  a  party  is  capable  of  contracting  is  a  question 
as  to  whether  the  mind  is  deranged  to  such  an  extent  as  to  dis- 
qualify the  contractor  from  conducting  himself  with  personal 
safety  to  himself  and  others,  and  from  managing  and  disposing 
of  his  OAvn  affairs  and  discharging  his  relative  duties.^  Thus,  the 
testamentary  capacity  of  a  party  does  not  necessarily  imj)ly  a 
mind  wholly  unimpaired.  If  the  testator  recollects  the  property 
he  is  to  dispose  of,  the  persons  to  whom  he  wishes  to  bequeath  it, 
the  manner  in  which  he  or  she  desires  to  dispose  of  it,  and  un- 
derstands the  business  engaged  in,  this  is  sufficient  capacity. 
The  disposing  mind  or  memory  which  the  law  declares  is  a 
test  of  testamentary  capacity,  is  embraced  in  the  one  power  to 
collect  and  retain  the  elements  of  business  to  be  performed  for 
a  sufficient  length  of  time  to  perceive  and  comprehend  their 
relations  to  each  other,^  and  this  test  will  apply  to  all  business 
relations  and  the  making  of  contracts.^ 

The  law  recognizes  all  the  grades  and  varieties  of  mental 
imbecility  under  the  general  head  of  insanity  without  troubling 
itself  much  about  classification  or  exact  definitions ;  in  a  legal 
sense  mental  unsoundness  is  insanity,  and  mental  soundness  is 
sanity. 

1.  McEhoy's  Case,  6  Watts  &  S.  1021,  12  L.  R.  A.  161  and  note; 
(Pa.)   451.  Shaver    v.    McCarthy,    110    Pa.    St. 

2.  Bulger  v.  Ross,  98  Ala.  267,  339,  5  A.  614;  Brown  v.  Mitchell, 
12  So.  803;  Hampton  v.  Westcott,  75  Tex.  9,  12  S.  W.  606;  Bush  v. 
49  N.  J.  Eq.  522,  25  A.  254;  Mar-  Lisle,  89  Ky.  393,  12  S.  W.  448; 
tin  V.  Thayer,  37  W.  Va.  38,  16  S.  Spratt  v.  Spratt,  76  Mich.  384,  43 
E.  489;  Norton  v.  Paxton,  110  Mo.  N.  W.  627;  Nicewander  v.  Mcewan- 
456,  19  S.  W.  807;  Greene  v.  der,  151  111.  146.  37  X.  E.  698. 
Greene,  145  111.  264,  33  N.  E.  941;  3.  Davren  v.  White,  42  N.  J.  Eq. 
Potter  V.  Jones,  20  Oreg.  239,  25  P.  569,  7  A.  682. 


17 


§§    6,  7  FREEDOM    OF    CONTRACT.  Ch.    2 

§  6.  What  is  capacity  to  contract. —  Whether  a  party  is  in- 
sane or  in  a  condition  of  feeble  or  impaired  mind  at  the  date 
of  the  contract,  so  as  to  render  it  voidable,  is  a  question  difficult 
to  answer.  But  if  the  contractor  has  memory  and  mind  enough 
to  recollect  the  proj)erty  he  is  to  convey  and  the  persons  to 
whom  he  was  to  convey  it,  and  the  manner  in  which  he  wished  it 
to  be  disposed  of,  and  knows  and  understands  the  business  he 
is  engaged  in,  such  person  is,  in  contemplation  of  law,  of  sound 
mind,  and  his  age  or  bodily  infirmity  will  not  vitiate  the  con- 
veyance made  by  one  possessing  such  capacity.^  But  if  the 
party  cannot  understand  the  nature  and  effect  of  his  contract 
on  account  of  his  idiocy,  lunacy,  monomania,  or  other  diseases 
of  the  mind,  he  is  non  compos  mentis.^  If  the  party  is  insane 
but  has  lucid  intervals,  a  contract  may  be  ratified  during  a  lucid 
interval  and  become  valid,  though  made  when  he  was  insane.^ 

Wliile  mere  imbecility  or  w^eakness  of  mind  in  a  grantor  will 
not,  in  the  absence  of  fraud,  avoid  his  deed,  insanity  will  do 
so  if  of  such  a  character  as  to  induce  the  conveyance,  although 
such  insanity  may  not  amount  to  a  complete  dethronement  of 
reason  and  understanding  upon  all  subjects."* 

§  7.  Old  age  and  w^eakness  of  mind  as  incapacity. —  The 

fact  that  a  person's  intellectual  powers  have  been  somewhat  im- 

1.  Eaton  V.  Eaton,  37  N.  J.  L.  (Va.)  704,  60  Am.  Dec.  313;  Perry 
108,  18  Am.  Rep.  716;  Gould  v.  v.  Pearson,  135  111.  224,  25  N.  E. 
Hull,    127   111.   523,   20   N.   E.   665;        636. 

Somers  v.  Pumphrey,  24  Ind.  231;  3.  AUis     v.      Billings,      6      Met. 

Dennett  v.  Dennett,  44  N.  H.  531,  (Mass.)    415,  39  Am.  Dec.  744  and 

84  Am.  Dec.  97 ;  Hovey  v.  Chase,  52  note ;  Blakeley  v.  Blakeley,  33  N.  J. 

Me.    316.  Eq.   502;    Gibson  v.  Loper,  6  Gray 

2.  Burnham  v.  Kidwell,   113  111.  (Mass.)    279,  66  Am.  Dee.  414. 
425;    Merritt   v.    Gumaer,    2    Cow.  4.  Dewey  v.  Allglre,   37   Neb.   6, 
(N.   Y.)    552;    Hale  v.    Brown,    11  55  N.  W.  276,  40  Am.  St.  Rep.  468; 

Ala.   87;    Ball  v.  Maunin,  3   Bligh,        Hay  v.  Miller,  48  Neb.   156,  66  N. 
N.  S.  1;  Brown  v.  Bro^vn,  108  Mass.        W.  1115. 
386;     Boyce     v.     Smith,     9     Gratt. 

18 


Ch.   2 


INSANE    I'ERSONS. 


§    T 


paired  by  age  is  not  sufficient  to  invalidate  bis  deed,  if  he  still 
retains  a  full  comprehension  of  the  meaning,  design,  and  effect 
of  his  acts.^  The  sole  question  is  always,  has  the  party  suffi- 
cient intelligence  to  understand  his  contracts  ?^  As  to  the 
measure  of  capacity,  a  party  must  have  understanding  enough 
to  enable  him  to  comprehend  in  a  reasonable  manner  the  nature 
of  the  business  he  is  doing.^ 

Old  ago  is  not  in  itself  sufficient  evidence  of  incapacity  to 
make  a  deed  or  will*  or  contract.  Mere  weakness  of  intellect 
does  not  incapacitate  one  from  making  a  contract.^  There  may 
be  such  imbecility  of  mind,  from  whatever  cause,  induced  to  in- 
capacitate to  contract.  It  seems  impossible  to  lay  down  a  gen- 
eral rule  of  universal  application.  Each  case  must  stand  on  its 
special  circumstances.  There  are  gradations  and  degrees  of 
mental  weakness,  as  there  are  of  intellectual  strength.     The  in- 


1.  Lindsey  v.  Lindsey,  50  111.  79, 
99  Am.  Dec.  489;  Davis  v.  Phillips, 
85  Mich.  198,  48  N.  W.  513;  Cocke 
V.  Montgomery,  75  Iowa,  259,  39  N. 
W.  386;  White  v.  Farley,  81  Ala. 
563,  8  So.  215;  Cain  v.  Warford,  33 
Md.  23;  Dewey  v.  Allgire,  37  Neb. 
G,  55  N.  W.  276,  40  Am.  St.  Rep. 
468;  Maddox  v.  Simmons,  31  Ga. 
528. 

2.  Davis  V.  Phillips,  85  Mich. 
198,  48  N.  W.  513. 

3.  Lozear  v.  Shields,  23  N.  J.  Eq. 
509;  Hill  v.  Day,  34  N.  J.  Eq.  150; 
Day  V.  Seely,  17  Vt.  542;  Gore  v. 
Gibson,  13  Mees.  &  Wal.  623;  Stew- 
art V.  Flint,  59  Vt.  144,  8  A.  801; 
Peabody  v.  Kendall,  145  111.  519,  32 
N.  E.  674;  Lynch  v.  Doran,  95 
Mich.  395,  54  N.  W.  882;  King  v. 
Cummings,  60  Vt.  502,  11  A.  727; 
Trimbo  v.  Trimbo,  47  Minn.  389,  50 


N.  W.  350;  Marshall  v.  Marshall, 
75  Iowa,  132,  39  N.  W.  230;  Jene- 
sen  V.  Jenesen,  66  111.  259;  Coleman 
V.  Frazer,  3  Bush.  (Ky.)  300; 
Crowe  V.  Peters,  63  Mo.  429. 

4.  Kerr  v.  Lunsford,  31  W.  Va. 
659,  8  S.  E.  493,  2  L.  R.  A.  668  and 
note;  Buckey  v.  Buckey,  38  W.  Va. 
168,  18  S.  E.  383 ;  Collins  v.  Town- 
ley,  21  N.  J.  Eq.,  353;  Watson  v. 
W'atson,  2  B.  Mon.  (Ky.)  74;  In  re 
Snelling,  136  N.  Y.  515,  32  N.  E. 
1006;  Bain  v.  Cline,  24  Oreg.  175, 
41  Am.  6t.  Rep.  851,  33  P.  542; 
Howell  V.  Taylor,  50  N.  J.  Eq.  428, 
26  A.  566;  Pooler  v.  Christman, 
145  HI.  405,  34  N.  E.  57. 

5.  2  Kent's  Com.  453;  Farnam  v. 
Brooks,  9  Pick.  (Mass.)  220;  Cram 
V.  Cram,  33  Vt.  15;  Curtis  v. 
Brownell,  42  Mich.  165,  3  N.  W. 
936. 


19 


§§    1,  8  FREEDOM    OF    CONTRACT.  Ch.    2 

quiry  in  each  case,  looking  to  all  the  circumstances,  is,  was  the 
party  led  into  the  contract  by  unfair  means,  which  amount  to 
fraud,  deceit,  imposition,  or  circumvention  ?^  If  one  is  capable 
of  taking  care  of  his  own  interests,  makes  a  bad  or  losing  con- 
tract, the  law  will  not  aid  him  unless  deceit  has  been  practiced 
against  him."  jSTo  degree  of  physicial  or  mental  imbecility, 
which  does  not  deprive  the  party  of  legal  competency  to  act, 
is  of  itself  sufficient  to  avoid  his  contract.^  It  must  go  so  far 
as  to  disable  him  from  knowing  and  understanding  the  nature 
and  effect  of  his  act.^  His  mind  may  be  weak  as  compared  with 
what  it  had  been,  the  memory  enfeebled,  the  understanding  b© 
weak,  the  character  and  demeanor  eccentric,  and  he  may  not 
have  the  capacity  to  transact  all  ordinary  business  of  life,  yet 
if  he  understands  the  nature  of  the  act  he  does,  recollects  the 
property  he  is  disposing  of,  and  the  person  to  whom  he  grants  it, 
and  how  he  desires  to  dispose  of  it,  his  act  is  valid. ^"^  The 
presumption  of  capacity  is  always  accepted  at  the  time  the 
deed  was  executed  or  contract  made  as  to  a  person  whose  con- 
tract is  brought  in  question. ^^ 

§  8.  Insane  delusion. —  A  party  may  be  partially  insane,  or 
insane  upon  one  subject  and  perfectly  rational  upon  other  sub- 
jects.    In  former  times  it  was  held  that  non  compos  mentis, 

6.  Simonton   v.    Bacon,   49   Miss.  8.  Favnam    v.    Brooks,    9    Pick. 

52;  Gartside  v.  Isherwood,  1  Bro.  C.  (Mass.)   212,  19  Am.  Dee.  353. 

C.  560;   Mann  v.  Betterley,  21  Vt.  9.  Mercer     v.     Kelso,     4     Gratt. 

326;    Willis    v.    Jernegon,    2    Atk.  (Va.)    106;    Buckey  v.   Buckey,   38 

251;      Stewart     v.     Lispenard,     26  W.  Va.  168,  18  S.  E.  383. 

Wend.   (N.  Y.)  254.  10.  Nicholas  v.  Kershear,  20  W. 


7.  Miller  v.  Craig,  36  111.  109 
Stone  V.  Wilbur,  83  111.  105 
Aiwon   V.    Stout,   42    Pa.    St.    114 


Va.  251;   Kerr  v.  Lunsford,  31  W. 
Va.  662,  8  S.  E.  493. 

11.     Buswell      on      Ins.,      159; 


Cain  V.  Warford,  33  Md.  23;  Mad-       Buckey  v.  Buckey,  38  W.  Va.  168, 
dox  V.  Simmons,  31   Ga.  512;   Van        18  S.  E.  383. 
Alst  V.  Hunter,  5  Johns.  Ch.  160. 


20 


Ch.    2  INSANE    PERSONS.  §    8 

meant  that  the  party  had  wholly  lost  his  understanding;^  that 
the  terms  "non  compos  mentis/'  and  of  unsound  mind,  are  legal 
terms  and  import  a  total  deprivation  of  sense.  This  doctrine 
has  long  since  been  repudiated.  Every  person  is  to  be  deemed 
of  unsound  mind  who  has  lost  his  memory  and  understanding, 
by  old  age,  sickness,  or  other  accident,  so  as  to  render  him  in- 
capable of  transacting  business  or  of  managing  his  property.^ 

When  an  insane  delusion  is  connected  with  the  transaction  the 
contract  is  voidable.  Whenever  the  mind  is  so  deranged  that 
the  testator,  gi-antor,  or  contractor  enters  into  a  transaction 
under  an  insane  delusion,  so  that  he  is  incapable  of  doing  busi- 
ness, the  transaction  is  voidable,^  even  if  the  delusion  is  the 
result  of  habitual  drunkeness.'*  If  the  insane  delusion  influences 
the  contractor's  will  in  disposing  of  his  property  in  a  manner 
which  he  would  not  follow  if  he  had  been  sane,  the  contract, 
will,  or  deed  will  be  voidable,^  though  the  actor  may  have  been 
of  sound  mind  in  other  respects.^  For  it  is  well  known  that  in 
many  forms  of  insanity  the  capacity  to  transact  business  is  en- 
tirely unaffected,  and  in  such  case  the  fact  of  insanity  cannot 
be  set  up  to  avoid  business  transactions  not  affected  by  the  in- 
sane delusion.^ 

The  belief  in  spiritual  manifestations  is  not  necessarily  evi- 

1.  Beverley's  Case,  4  Co.  123,  Co.  6.  Lucas  v.  Parsons,  24  Ga.  640, 
Litt.  247a,  2  Bl.  Com.  292.  71  Am.  Dec.   147;   Cotton  v.  Ulnor, 

2.  In  re  Baker,  2  Johns.  Ch.  (N.  4.5  Ala.  378,  6  Am.  Rep.  703; 
Y.)  232;  Perry  v.  Pearson,  135  111.  Chaney  v.  Bryan,  16  Lea  (Tenn.), 
218,  25  N.  E.  636;  Xoel  v.  Karper,  03;  Tawney  v.  Levy,  76  Pa.  St.  106; 
53  Pa.  St.  97.  Bond  v.  Bond,  7  Allen    (Mass.)    1; 

3.  Edge  V.  Edge,  38  N.  J.  Eq.  Alston  v.  Boyd,  6  Humph.  (Tenn.) 
211.  504;   Rlggs  v.  Tract  Soc,  95  N.  Y. 

4.  Menkins,  v.  Lightner,  18  111.  503;  Samuel  v.  Marshall,  3  Leigh. 
282;   Bliss  v.  Railroad  Co.,  24  Vt.  (Va.)   567. 

424.  7.  Searles    v.    Galbraith,    73    111. 

5.  Banks  v.  Goodfellow,  L.  R.,  5  209:  West  v.  Russell,  48  Mich.  74, 
Q.  B.  544;  Ballantine  v.  Proudfoot,        11  N.  W.  812. 

62  Wis.  216,  22  N.  W.  392. 

21 


§§    8,  9  FREEDOM    OF    CONTRACT.  Cll.    2 

dence  of  such  an  impaired  mental  condition  as  to  sliow  that 
those  who  hold  such  opinions  are  unfit  to  make  a  disposition  of 
their  property.^  So  the  fact  that  a  testator  is  a  spiritualist  is 
not  a  suflScient  ground  for  setting  aside  his  will.^  Extreme  re- 
ligious anxiety  of  a  party  is  not  a  ground  for  setting  aside  his 
contract  or  will.^°  Partial  insanity  in  the  form  of  monomania 
not  connected  with  the  subject  of  the  contract,  cannot  invali- 
date the  transaction.  To  avoid  a  contract,  the  insane  delusion 
must  be  connected  with  it  as  a  moving  force.^^ 

§  g.  Void,  voidable,  and  valid  contracts, —  The  general  rule 
is  that  transactions  of  insane  persons  are  binding  in  law  and 
equity  until  avoided.  And  although  their  transactions  are  in 
general  not  void,  but  only  voidable,  the  court  will  fully  protect 
their  interests  and  will  allow  them  to  set  up  their  disability  in 
avoidance  of  their  transaction.^ 

A  deed  of  conveyance  of  a  person  of  insane  mind,  executed 
before  an  inquisition  and  finding  in  lunacy,  if  taken  in  good 
faith  is  voidable  only  and  not  void,"  and  this  is  the  rule  as  to 
other  contracts. 

8.  Lewis  V.  Aibuckle,  85  Iowa,  (Mass.)  431;  Seaver  v.  Phelps,  11 
335,  52  N.  W.  237,  16  L.  R.  A.  677  Pick.  (Mass.)  304,  22  Am.  Dec.  372. 
and  note.  2.  Baldwin  v.  Golde,  88  Huij   (N. 

9.  Otto  V.  Doty,  61  Iowa,  23,  15  Y.),  115,  34  N.  Y.  S.  587;  Eaton  v. 
N.  W.  578;  Smith  v.  Will,  52  Wis.  Eaton,  37  N.  J.  L.  108,  18  Am.  Rep. 
543,  8  N.  W.  616,  9  N.  W.  665.  See,  716;  4  Kent's  Com.  450;  Elston  v. 
also.  Burgess  v.  Pollock,  53  Iowa,  Jasper,  45  Tex.  413;  Pearson  v. 
273,  5  N.  W.  179,  36  Am.  Rep.  218.  Cox,  71  Tex.  246,  9  S.  W.  924,  10 

10.  Chapin's  Will  Case,  32  Wis.  Am.  St.  Rep.  740;  Riggan  v.  Green, 
557;  Weir's  Will,  9  Dana  (Ky.)  80  N.  Car.  236,  30  Am.  Rep.  77; 
434.  Hovey  v.  Chase,  52  Me.  304,  83  Am. 

11.  Boyee  v.  Smith,  9  iGratt.  Dec.  514;  Alles  v.  Billings,  fi  Met. 
(Va.)  704;  Lewis  v.  Arbuekle,  85  (Mass.)  415,  39  Am.  Dec.  744  and 
Iowa,  335,  52  N,  W.  237,  16  L.  R.  note;  Gibben  v.  Maxwell,  34  Kan. 
A.  677  and  note.  8,  7  P.  534,  55  Am.  Dec.  233 ;  Boyer 

1.  Mitchell  V.   Kingman,  5  Pick.       v.  Berryman,  123  Ind.  451.  24  N.  K 


22 


Ch.    2  INSANE    PERSONS.  §    9 

In  England  and  in  the  United  States,  when  the  common  law 
prevailed,  a  feoffment  of  a  lunatic  or  idiot,  in  person,  was  only 
voidable,  and  not  void ;  because  the  solemnity  and  formalities 
of  liverv  of  "scisin,  together  with  the  necessary  participation  of 
others  in  the  act,  and  its  notoriety,  presuppose  that  the  inca- 
pacity of  that  party  was  not  apparent.^  In  the  United  States 
livery  of  seisin  has  been  abolished,  and  registration  has  taken 
its  place.  So  where  a  deed  of  bargain  and  sale  of  a  lunatic, 
when  executed  with  all  the  formalities  of  law,  and  duly  regis- 
tered, will,  like  a  feoffment  in  person,  be  only  voidable  and  not 
void. 

But  it  is  said  that  there  is  a  distinction  between  the  feoff- 
ment of  a  lunatic  taking  effect  by  livery  of  seisin  and  his  deed 
of  bargain  and  sale;  that  his  surrender,  or  grant,  is  void  ah 
initio.'^  It  is  held  that  a  deed  of  a  man  who  is  non  compos 
mentis,  is  legally  ineffectual  and  inoperative  to  pass  title  to 
land;  that  it  is  not  merely  voidable,  but  absolutely  void;  that 
it  cannot  be  a  deed,  it  never  having  had  any  legal  existence.^ 

And  it  is  also  held  that  a  power  of  attorney  of  a  lunatic,  or 
of  one  non  compos  mentis,  is  void.^ 

But  this  doctrine  of  a  void  deed,  if  made  by  a  lunatic,  is  not 
accepted  only  by  a  few  courts  and  the  weight  of  authority  holds 

249;   Dennett  v.  Dennett,  44  N.  H.  4.  3     Salk.    300,    2    Vent.    198; 

538;    Blakely  v.   Blakely,   33   N.  J.  Yates  v.  Boen,  2  Strange,  1104;  Es- 

Eq.    508;    Snowden   v.   Dulavey,    11  tate  of  Silver,  5  Rawle   (Pa.)    371; 

Pa.  St.  525;  Breckinridge  v.  Orms-  Farley   v.    Parker,    6    Ore.    105,    25 

by,    i   J.   J.   Marsh.    (Ky.)    236,    19  Am.     Rep.     504;     Elder     v.     Schu- 

Am.  Dec.  71;  Fitzgerald  v.  Reed,  9  macher,    18   Colo.    433,   33   P.    175; 

S.  M.    (Miss.)    94;   Allen  v.  Berry-  Rogers  v.  Blackwell,  49  Mich.   192, 

hill,  27  Iowa,  540;  Riley  v.  Carter,  13  N.  W.  512;  Van  Dusen  v.  Sweet, 

76  Md.  581,  25  A.  667,  19  L.  R.  A.  51   N.  Y.  378. 

489  and  note,  35  Am.  St.  Rep.  443;  5.  Van  Dusen  v.  Sweet,  51  N.  Y. 

Jackson  v.  Gumear,  2  Cow.   (N.  Y.)  378. 

552:  Key  v.  Davis,  1  Md.  32.  6.  Dexter  v.  Hall,   15  Wall.    (U. 

3.  Thompson  v.  Leach,  Carthew.  S.)    9. 
435. 


23 


§    9  FREEDOM    OF    CONTEACT.  Cll.    2 

that  such  deed  is  only  voidable.  And  as  the  conveyance  laws  of 
the  United  States  take  the  place  of  the  feoffment  and  livery  of 
seisin,  and  which  was  voidable  when  made  by  an  insane  person, 
so  a  deed  in  the  United  States  made  by  a  lunatic  should  be  void- 
able only  and  not  void. 

An  insane  man  has  not  the  power  to  convey  an  indefeasible 
title.  This  incapacity  inheres  in  all  titles  transferred  through 
him.  The  right  of  infants  and  insane  alike  to  avoid  their 
contracts  is  an  absolute  and  paramount  right  superior  to  all 
equities  of  third  persons,  and  may  be  exercised  against  a  bona 
fide  purchaser;  his  deed  is  voidable,  not  void,"^  and  when  not 
under  guardianship,  conveys  the  seisin.^  The  insanity  of  one 
contracting  party  does  not  give  to  the  other  party  the  right  to 
avoid  the  contract.^ 

There  is  an  array  of  decisions  that  hold  that  a  deed  given  by 
a  lunatic  is  void.  It  is  generally  held  that  after  one  has  been 
judicially  declared  insane,  any  contract  he  assumes  to  make  is 
absolutely  void,  and  the  presumption  of  the  continuance  of  the 
insanity  is  conclusive  as  to  all  dealings  with  him  until  it  has 
been  suspended. ^°  And  so  a  deed  executed  by  a  lunatic  is  ab- 
solutely void,  and  if  not  taken  in  good  faith  and  for  a  valuable 
consideration,  will  not  be  upheld  in  equity,  even  in  favor  of  a 
mortgagee  of  the  grantee.^^  And  so  a  note  made  by  a  lunatic 
with  knowledge  of  his  condition  on  the  part  of  the  payee  is  ab- 

7.  Hovey  v.  Hobson,  53  Me.  451,  Rep.  443;   Boyer  v.  Berryman,   123 

80  Am.  Dec.  705;   Cook  v.   Parker,  Ind.   451,   24   N.   E.   249;    Burke  v. 

5    Phila.    (Pa.)    265;    Ingraham   v.  Allen,   29   N.   H.   106,   61  Am.   Dec. 

Baldwin,    9    N.    Y.    45;    Arnold    v.  642. 

Richmond     Iron     Works,     1     Gray  8.  Wait     v.     Maxwell,     5     Pick. 

(Mass.)   434;   Kates  v.  Woodson,  2  (Mass.)   217,  16  Am.  Dec.  391. 

Dana   (Ky. )   452;  Burnham  v.  Kid-  9.  Atwell   v.   Jenkins,    163  Mas3. 

well,   113  111.   425;   Keil  v.   Healey,  362,  40  N.  E.  178,  28  L.  R.  A.  694, 

84  111.  104,  25  Am.  Rep.  434;  Scan-  47  Am.  St.  Rep.  463. 

Ion  V.  Cable,   88  III.  291;   Riley  v.  10.  Carter  v.    Beckwith,    128   N. 

Carter,  76  Md.   581,  25  A.  667,   19  Y.  312,  28  K  E.  582. 

L.  R.  A.  489  and  note,  35  Am.  St.  11.  Goodyear  v.  Adams,  5  N.  Y. 

24 


Ch.    2  INSANE    PERSONS.  §§    9,  10 

soliitely  void/^  and  this  doctrine  finds  support  in  many  cases,^' 
The  other  line  of  decisions  which  hold  that  a  lunatic's  dealings, 
before  inquest  found,  are  only  voidable,  may  possibly  be  re- 
conciled on  the  ground,  that  the  contract  was  made  in  good 
faith,  and  without  knowledge,  either  actual  or  constructive,  on 
the  part  of  the  party  contracting  with  the  lunatic.  This  con- 
flict of  authority  may  be  reconciled  by  the  determination  of  the 
question  whether  or  not  the  contract  is  executed  under  condi- 
tions in  which  the  law  presumes  sanity  or  insanity. 

§  10.  Restoration  of  reason. —  After  a  person  has  been  ad- 
judged insane  and  sent  to  an  asylum  and  then  discharged  as 
sane,  any  contract  entered  into  by  him  tliereafter  is  valid  with- 
out any  adjudication  by  the  proper  court  that  such  person  has 
been  restored  to  reason.^  And  so  if  a  person  has  been  adjudged 
insane,  but  no  conservator  has  been  appointed,  and  he  still 
manages  his  business,  no  appearance  of  insanity,  his  con- 
tracts are  valid,  provided  they  are  fair  and  reasonable,  the  other 
party  having  no  notice  of  his  insanity  or  of  the  court  proceed- 
ings against  him.^ 

And  if  the  guardianship  has  been  abandoned,  though  the 
party  has  not  been  restored  to  his  rights  by  the  proper  court, 
his  contract,  if  fair,  will  be  enforced,  provided  his  reason  has 
been  restored.^ 

Supp.  275,  119  N.  Y.  650.  See,  also,  Henry  v.  Fine,  23  Ark.  417;  Lin- 
Van  Dusen  v.  Sweet,  51  N.  Y.  497;  coin  v.  Buekmaster,  15  Wall.  (U. 
Valentine  v.  Lunt,  115  N.  Y.  497,  S.)  9;  Refining  Co.  v.  McMahon,  38 
22  N.  E.  209;  Riggs  v.  Society,  95  N.  J.  L.  537.  See  Contracts  of 
N.  Y.  503.  Lunatics,  17  Law  Quarterly  Review, 

12.  Westerfield    v.    Jackson.    41  147. 

Hun   (X.  Y.)   645.  1.  Topeka   Water   Supply  Co.  v. 

13.  Beavan      v.      McDonnell,      9  Root,  56  Kan.  187,  42  P.  715. 
Exch.  309;  Gore  v.  Gibson,  13  Mees.  2.  McCormick  v.   Littler,   85   111. 
&    W.    623;    Johnson   v.    Stone,    35  62,  28  Am.  Rep.  610. 

Hun   (N.  Y.)    380,   103  N.  Y.  687;  3.  Elston  v.  Jasper,  45  Tex.  409, 


25 


§§    10,  11  FREEDOM    OF    CONTRACT.  Ch.    2 

But  the  burden  of  proving  the  restoration  of  reason  and  the 
termination  or  practical  abandonment  of  the  guardianship  of 
one  insane  is  upon  him  who  seeks  tlie  enforcement  of  a  contract 
against  him  who  pleads  insanity.'*  And  if  the  party  was  shown 
to  be  sane  when  he  made  the  contract,  his  subsequent  insanity 
does  not  avoid  it.^ 

§  II.  Necessaries. — While  an  insane  person  cannot  bind  him- 
self by  express  contract,  yet  the  contracts  created  by  law  are 
binding  on  him.  The  law  implies  a  contract  on  his  part  to  pay 
for  necessaries  furnished  him,  and  services  rendered  in  good 
faith  and  under  circumstances  justifying  their  being  furnished 
or  rendered,  and  his  estate  will  be  bound  for  them.^  He  is 
liable  for  necessaries  furnished  his  family,^  and  even  for 
luxuries  furnished  in  good  faith.^  If  the  party  has  been  judged 
insane  and  a  guardian  appointed,  he  is  still  liable  for  neces- 
saries,^ but  if  he  is  already  sufficiently  supplied  with  any  neces- 
saries, he  should  not  be  liable  for  a  further  supply  of  the  same 
kind.^  But  if  necessaries  are  furnished  in  good  faith,  and  under 
circumstances  justifying  their  being  so  furnished,  the  person 
furnishing  may  recover.  The  insane  man  stands  in  the  same 
position  as  minors,   and  is  liable  for  necessaries.       And  this 

4.  Elston  V.  Jasper,  45  Tex.  409.  Thompson,  16  Pick.  (Mass.)  198, 
See,  also,  Searle  v.  Galbiaith,  73  26  Am.  Dec.  655;  Searles  v.  Pipkin, 
111.     269;     McGinnis    v.     Common-       69  N.  Car.  513. 

wealth,   74  Pa.   St.  245.     Compare  2.  Read  v.  Legard,  6  Exch.  636. 

Redden    v.     Baker,    86    Ind.     191;  3.  Kendall     v.     May,     10     Allen 

Kiehne  V.  Wessell,  53  Mo.  App.  667.  (Mass.)    59. 

5.  Sands  v.  Potter,  59  111.  App.  4.  Reando  v.  Misplay,  90  Mo.  251, 
206.  2  S.  W.  405,  59  Am.  Rep.   13;   Mc- 

1.  Williams     v.     Wentworth,     5  Crellis   v.    Bartlett,   8    N.   H.    569; 

Beav.   325;  Van  Horn  v.  Hann,  39  Baxter   v.   Portsmouth,    5   Barn.    & 

N.  J.  L.  207;  McCormick  v.  Littler,  Cr.  170. 

85  111.  62,  28  Am.  Rep.  610;   Sceva  5.  Phillips   on   Lunatics,   17. 
V.    True,    53   N.    H.    627;    Shaw   v. 


26 


Ch.  2 


INSANE    PERSONS. 


§§    11,12 


rule  is  applicable  though  a  guardian  has  been  appointed,  as  the 
law  implies  a  promise  to  pay  for  necessaries.  The  estate  of 
the  insane  is  legally  and  equitably  liable  for  necessaries  fur- 
nished in  good  faith  and  under  circumstances  justifying  their 
being  furnished,^  and  when  furnished  to  the  insane  man  or 
his  family  and  not  to  a  third  person.'''  When  another  promises 
in  writing  to  pay  for  necessaries  for  an  insane  person,  or  makes 
an  original  contract  for  them,  the  insane  person's  estate  is  not 
liable  for  the  necessaries.^ 

§  12.  After  inquisition  and  finding  of  lunacy. —  At  common 
law  an  inquisition  finding  one  a  lunatic  upon  a  writ  of  de 
lunatico  inquirendo,  was  evidence  of  his  lunacy  as  to  all  and 
any  collateral  proceedings ;  all  his  contracts  thereafter  were 
void  and  not  voidable.^  And  this  rule  has  been  adopted  by 
many  States,  and  all  contracts  of  an  insane  person  after  finding 
of  lunacy  and  the  appointing  of  a  guardian,  are  absolutely 
void.^    And  under  such  a  law  in  many  States  the  appointment 


6.  Fruitt  V.  Anderson,  12  111. 
App.  421;  La  Rue  v.  Gilkyson,  4 
Pa.  St.  375,  45  Am.  Dec.  700;  Pearl 
V.  McDowell,  3  J.  J.  Marsh.  (Ky.) 
658,  20  Am.  Dec.  199;  Sawyer  v. 
Lufkin,  5C)  Me.  308. 

7.  Massachusetts  General  Hospi- 
tal V.  Fairbanks,  132  Mass.  414. 

8.  Massachusetts  General  Hospi- 
tal V.  Fairbanks,  129  Mass.  78,  37 
Am.  Rep.  303.  See,  also.  Forester 
V.  Fuller,  6  Mass.  58,  4  Am.  Dec. 
87;  Somes  v.  Beaver,  1  Pick. 
(Mass.)    314. 

1.  Wait  V.  Maxwell,  5  Pick. 
(IVIass.)   217,  16  Am.  Dec.  391. 

2.  Copenrath  v.  Kienly,  83  Ind. 
18;    German   Sav.   and   L.   Asso.  v. 


DeLashmutt,  67  Fed.  Rep.  399; 
Leonard  v.  Leonard,  14  Pick. 
(Mass.)  280;  Mohr  v.  Tulip,  40 
Wis.  66;  New  England,  etc.,  Co.  v. 
Spitler,  54  Kan.  560,  38  P.  799; 
Griswold  v.  Butler,  3  Conn.  227; 
Maloney  v.  Dewey,  127  111.  395,  19 
N.  E.  848,  11  Am.  St.  Rep.  131; 
Pearl  v.  McDowell,  3  J.  J.  Marsh. 
(Ky.)  658,  20  Am.  Dec.  199;  White 
V.  Palmer,  4  Mass.  147;  Ingraham 
V.  Baldwin,  9  N.  Y.  45;  Wilcox  v. 
Fitzhugh,  12  Barb.  (N.  Y.)  235; 
Compare  Yanger  v.  Spinner,  1  Me- 
Carter  (N.  J.)  389;  Lancaster 
Bank  v.  Wood,  78  Pa.  St.  407,  21 
Am.  St.  Rep.  24  and  note. 


27 


§    12  FREEDOM    OF    CONTRACT.  Oh.    2^ 

of  a  guardian  is  conclusive.^  This  rule  applies  to  drunkards 
who  are  incapable  of  taking  care  of  their  property.^  Putting  a 
party  in  control  of  a  guardian,  is  in  the  nature  of  a  commission 
on  the  writ  de  Iwiaiico  inquirendo.^  The  assent  of  the  guardian 
to  the  lunatic's  deed,  does  not  validate  it.^  After  inquest  and 
judgment  of  hmacj,  the  disability  of  the  ward  is  conclusive; 
and  it  is  immaterial  from  what  cause  his  insanity  resulted, 
whether  from  old  age,  sickness,  habitual  drunkenness,  or  other 
causes  whatever.'^ 

So  long  as  the  guardianship  continues  the  decree  is  regarded 
as  conclusive  on  the  question  of  the  ward's  sanity,  on  the  ground 
that  the  decree  fixed  the  w^ard's  status  as  to  all  the  world,  and 
because  it  might  greatly  embarrass  the  execution  of  his  trust 
if  the  guardian  could  be  compelled  to  try  the  question  of  his 
ward's  sanity  in  every  action  for  or  against  him.^  But  when 
the  guardianship  has  terminated,  and  a  controversy  has  arisen 
between  third  parties,  one  of  whom  claims  under  a  contract 
made  with  the  ward  after  the  termination  of  the  guardianship, 
the  reason  ceases  for  holding  the  decree  conclusive.^  And  the 
discharge  of  a  patient  from  a  lunatic  asylum  may  be  regarded 
as  evidence  of  recovery. ^*^ 

3.  Wadsworth  v.  Sherman,  14  32  111.  App.  521;  Behrensmeyer  v. 
Barb.  (N.  Y.)  169;  Leonard  v.  Kreitz,  135  111.  638,  26  N.  E.  704; 
Leonard,  14  Pick.  (Mass.)  280;  Hicks  v.  Chapman,  10  Allen 
White  V.  Palmer,  4  Mass.  147;  Mc-  (Mass.)   463. 

Donald  v.  Morton,   1  Mass.  543.  7.  Rannells    v.    Gerner,    80    Mo. 

4.  Wadsworth    v.     Sherman,     14       474. 

Barb.    (N.  Y.)    169.  8.  White  v.  Palmer,  4  Mass.  147; 

5.  Inhoff  V.  Witmer,  31  Pa.  St.  Leonard  v.  Leonard,  14  Pick. 
243;  Ex  parte  Crammer,  12  Ves.  (Mass.)  280;  Legat  v.  Clark,  111 
445;    Barker's   Case,    2    Johns.    Ch.  Mass.  308,  310. 

(N.    Y.)    232;    Gibson   v.    Jeyes,    6  9.  Willworth     v.     Leonard,     156 

Ves.    273;    Ridgeway   v.   Darwin,   8  Mass.  277,  31  N.  E.  299. 

Ves.  65.  10.  Langdon  v.    People,    133   111. 

6.  Griswold    v.    Butler,    3    Conn.  382,  24  N.  E.  874. 
231.      See,   also,   Huling  v.   Huling, 

28 


Ch.    2  INSANE    PERSONS.  §§    12,  13 

In  some  of  the  States,  under  a  statute,  a  court  may  send  a 
party  to  an  insane  asylum  for  treatment,  and  this  does  not  dis- 
qualify him  from  making  contracts."  And  though  a  party  is 
under  guardianship,  he  is  still  liable  for  necessaries.^^ 

§  13.  Marriage  —  Insanity  of  party. —  The  capacity  to  make 
a  legal  marriage  contract  does  not  differ  from  any  other  con- 
tract. If  the  capacity  be  such  tliat  the  party  is  incapable  of 
understanding  the  nature  of  the  contract  itself,  and  incapable 
from  mental  imbecility  of  taking  care  of  his  or  her  OAvn  person 
or  property,  such  an  individual  cannot  dispose  of  his  or  her 
person  and  property  by  a  matrimonial  contract  any  more  than 
by  any  other  contract.^  Hence^  a  marriage  is  void  if,  at  the 
time  it  takes  place,  the  husband  had  not  sound  mental  capacity 
to  enable  him  to  understand  the  nature  of  the  marriage  con- 
tract and  of  the  marital  relations,  and  the  understanding  that 
he  took  upon  himself  duties,  obligations  and  responsibilities  of 
that  relation.  The  rule  of  competency  does  not  require  that  he 
shall  understand  all  the  marital  duties  and  obligations,  but  re- 
quires that  he  shall  understand  that  he  assumes  them  whatever 
they  may  be.^  And  the  law  is,  in  the  absence  of  any  statutory 
provisions  to  the  contrary,  that  it  is  not  required  to  go  into  court 
to  annul  a  marriage  which  has  no  existence,  but  is  absolutely 
void  ah  initio,  and  its  invalidity  may  be  shown  in  a  proceed- 
ing  in    any   court   whenever   the   question  arises  collaterally.^ 

11.  Knox  V.  Haug,  48  Minn.  58,  574,  26  A.  837;  Browning  v.  Reane, 
50  N.  W.  934.  2  Phillim.  70. 

12.  Lilly  V.  Wagoner,  27  111.  2.  St.  George  v.  Biddeford,  76 
395;  McCormick  v.  Littler,  85  111.  Me.  593;  Atkinson  v.  Medford, 
62,  28  Am.  Rep.  610;  Burnham  v.  46  Me.  510;  Cole  v.  Cole,  I 
Kidwell,  113  111.  425;  Sawyer  v.  Sneed  (Tenn.)  57;  Unity  v.  Bel- 
Lufkin,  56  Me.  308;  Reando  v.  Mis-  grade,  76  Me.  419;  Middleboro  v. 
play,  90  Mo.  251,  2   S.  W.  405,  15  Rochester,   12  Mass.   363. 

Am.  Rep.  13.  3.  Gathings  v.  Williams,  5  Ired. 

1.  Kern   v.   Kern,    51    N.   J.   Eq.        (N.   Car.)    487;    Schouler  on  Dom. 

29 


13,  14 


FREEDOM    OF    CONTRACT. 


Ch.   2 


The  mere  fact  of  insanity  without  more  evidence  is  not  suffi- 
cient ground  to  annul  a  marriage  contract.*  In  most  of  the 
States  statutory  provisions  are  made  so  that  a  judicial  proceed- 
ing is  necessary  to  annul  a  marriage,  and  hence  a  void  mar 
riage  cannot  be  attacked  in  a  collateral  proceeding.^ 

§  14.  Bills  and  notes  of  insane  persons. —  When  the  payee 
of  a  promissory  note  has  notice  of  the  maker's  insanity,  he  can- 
not recover  on  the  note,  though  the  consideration  was  for  neces- 
saries ;  but  the  amount  may  be  collected  from  the  estate.^  But 
where  one  in  good  faith  takes  a  note  signed  by  a  person  of  whose 
incompetency  to  do  business  he  has  no  notice,  and  in  a  transac- 
tion which  is  not  likely  to  call  his  attention  to  it,  he  can  recover 
on  the  note.^ 

In  a  suit  by  an  indorser  of  a  promissory  note  made  by  a 
lunatic,  the  latter  may  defend  on  the  ground  that  the  indorser 


Eel.   24;    Atkinson   v.   Medford,   46 
Me.  510. 

4.  Concord  v.  Rumsey,  45  N.  H. 
423. 

•  5.  State  V.  Setzer,  97  N.  Car. 
252,  1  S.  E.  558,  2  Am.  St.  Kep. 
290;  Wiser  v.  Lockwood,  42  Vt. 
720;  Jenkins  v.  Jenkins,  2  Dana 
(Ky.)  102,  26  Am.  Dec.  437;  Way- 
meer  v.  Jetmore,  22  Ohio  St.  291; 
Powell  V.  Powell,  18  Kan.  371,  26 
Am.  Eep.  774. 

1.  Milligan  v.  Pollard,  112  Ala. 
465,  20  So.  620 ;  Davis  v.  Tarver,  65 
Ala.  98.  See,  also,  McLain  v. 
Davis,  77  Ind.  419;  Seaver  v. 
Phelps,  11  Pick.  (Mass.)  304,  22 
Am.  Dec.  372. 

2.  Hosier  v.  Beard,  54  Ohio  St. 
398,  43  N.  E.  1040,  35  L.  R|.  A.  161 
and    note,    56    Am.    St.    Dec.    720; 


Nace  V.  Boyer,  30  Pa.  St.  99; 
Wilder  v.  Weakley,  34  Ind.  181; 
Henderson  v.  McGregor,  30  Wis.  78 ; 
Alexander  v.  Haskins,  68  Iowa,  73, 
25  N.  W.  935;  Young  v.  Stevens, 
48  N.  H.  133,  97  Am.  Dec.  592; 
Kaggan  v.  Oreen,  80  N.  Car.  236, 
30  Am.  Rep.  77;  National  Bank  v. 
Moore,  78  Pa.  St.  407,  21  Am.  Rep. 
24  and  note;  Mutual  L.  Ins.  Co.  v. 
Hunt,  79  N.  Y.  541;  Shoulters  v. 
Allen,  51  Mich.  529,  IG  N.  W.  888; 
Loomis  V.  Spencer,  2  Paige  (N.  Y. ) 
153;  Burnham  v.  Kidwell,  113  III. 
425;  Canfield  v.  Fairbanks,  63  Barb. 
(N.  Y.)  461;  Physio-Med.  College 
v.  Wilkinson,  108  Ind.  315,  9  N.  E. 
376;  Matthieson  v.  McMahon,  38 
K  J.  L.  536;  Gibben  v.  Maxwell, 
34  Kan.  8,  7  P.  584,  55  Am.  Rep. 
233;  Behrens  v.  McKenzie,  23  Iowa, 


30 


Ch.    2  INSANE    PERSONS.  §§    14,  15 

had  knowledge  of  the  maker's  lunacy,  or  that  the  note  was  ob- 
tained by  fraud  or  without  proper  consideration.^  And  an 
accommodation  indorser  of  a  promissory  note,  who  receives  no 
benefit  therefrom  either  to  himself  or  his  estate,  may  defend 
against  a  bona  fide  holder  on  the  ground  that  he  was  non  compos 
mentis  at  the  time  of  the  indorsement;  and  this  though  the 
holder  at  the  time  of  the  transfer  to  him  had  no  knowledge  of 
the  indorser's  insanity.* 

§  15.  Partnership. —  Whether  the  insanity  of  a  party  dis- 
solves a  partnership  of  which  he  is  a  partner  is  not  answered 
the  same.  In  many  States  the  insanity  dissolves  the  partner- 
ship without  any  decree  of  court,  as  it  is  held  to  be  a  dissolution 
by  operation  of  law ;  and  as  it  is  an  event  over  which  the  parties 
have  no  control,  no  notice  of  such  a  dissolution  is  necessary. 
Thus,  the  death,  bankruptcy  or  lunacy  of  one  of  the  partners 
dissolves  the  contract.^  That  is  to  say,  an  inquisition  of  lunacy 
against  a  member  of  a  partnership  dissolves  ipso  facto  the 
partnership.^  But  the  rule  is  suiDported  by  the  great  weight 
of  authority  that  the  insanity  of  a  partner  does  not,  per  se, 
dissolve  a  partnership,  but  may  constitute  a  sufficient  ground  to 
justify  a  court  of  equity  in  decreeing  its  dissolution.  This  is 
the  true  doctrine  and  is  applied  by  courts  of  equity  with  ap- 
propriate limitations  and  restrictions,  for  while  curable,  tempo- 
rary insanity  will  be  sufficient,  upon  inquisition,  to  sustain  an 
adjudication  of  insanity  in  the  proper  court,  the  appointment  of 
a  conservator  and  commitment  of  the  ward  to  an  insane  asylum, 

333,  92  Am.  Dec.  28 ;  Scanlan  v.  tional  Bank  v.  Sneed,  97  Tenn.  120, 
Coble,  85  111.  296.  36  S.  W.  716,  34  L.  R.  A.  274  and 

3.  Moore  v.  Hershey,  90  Pa.  St.       note,  56  Am.  St.  Eep.  788. 

196.  1.  Griswold    v.    Waddington,    15 

4.  Mirebach  v.  Bank,  97  Pa.  St.       Johns.    (X.  Y.)   57. 

543,    39    Am.    Rep.    821;    Vores   v.  2.  Isler     v.     Baker,     6     Humph. 

Harshbayer,  11  Ind.  App.  555,  39  (Tenn.)  85.  See,  also,  Davis  v. 
N.   E.  521;   Compare  Memphis  Na-       Lane,  10  N.  H.  156. 

31 


§    15  FREEDOM    OF    CONTEACT.  Ch.    2 

yet  it  will  not  authorize  a  court  of  chancery  to  decree  dissolution 
of  partnership  if  the  malady  be  temporary  only,  with  a  fair 
pros]3ect  of  recovery  within  a  reasonable  time.^  When  a  partner 
is  affected  with  insanity,  the  continuing  partner  may,  if  he 
thinks  fit,  make  it  a  ground  of  dissolution,  but  generally  in 
order  to  make  it  a  ground  of  dissolution  he  must  obtain  a  decree 
of  court  ;^  if  it  be  a  partnership  at  will,  the  sane  partner  may 
dissolve  the  partnership  of  his  own  volition.^ 

Insanity  does  not  work  a  dissolution  of  partnership  ipso 
facto.  Courts  of  equity  will,  as  between  partners,  look  to  the 
effect  produced  upon  the  partnership  relations  and  business,  and 
refuse  to  dissolve  the  partnership  and  apply  its  assets  unless  the 
insanity  materially  affects  the  capacity  of  the  partner  to  dis- 
charge the  duties  imposed  by  his  contract  relations.®  A  decree 
of  a  court  of  chancery  is  necessary  to  a  dissolution  of  partner- 
ship, notwithstanding  there  has  been  an  adjudication  declaring 
one  partner  a  lunatic/ 

The  better  rule  is  that  where,  after  one  of  the  partners  had 
been  adjudged  insane,  but  his  insanity  was  considered  only 
temporary  and  curable,  and  the  continuing  partner  without  ob- 
jection, or  notice  to  any  one,  still  carried  on  the  business  pre- 
cisely as  before,  the  presumption  is  that  he  does  not  intend  a 
dissolution  of  the  firm,  and,  in  the  absence  of  evidence  to  the 
contrary,  that  he  waits  to  determine  whether  the  incapacity  of 

3.  Story  on  Part.  297;  Jones  v.  5.  Raymond  v.  Vaughn,  128  111. 
Noy,  2  Mylne  &  K.  125;  Doughty  256,  21  N.  E.  556,  4  L.  R.  A.  440, 
V.  Doughty,  3  Hals.  (N.  J.  Ch.)  15  Am.  St.  Rep.  112.  See,  also,  Mc- 
227;  Uberoth  v.  Bank,  9  Phila.  Elroy  v.  Lewis,  76  N.  Y.  373;  Carl- 
(Pa.)   83.  ton    v.    Cummings,    51    Ind.    478; 

4.  Raymond  v.  Vaughn,  128  111.  Lawrence  v.  Robinson,  4  Colo.  567. 
256,  21  N.  E.  566,  4  L.  R.  A.  440,  6.  3  Kent's  Com.  58. 

15    Am.    St.    Rep.    112.      See,   also,  7.  2  Collier  on  Part.,  ch.  3,  sec. 

Bagshaw  v.  Parker,   10  Beav.   532;        3;    Gow    on    Part.,    ch.    5,    sec.    1. 
Robertson  v.  Lockie,   15   Sim.  285;       Compare  Parson  on  Cont.,  484. 
Pierce  v.    Chamberlain,   2  Ves.    Sr. 
33. 


32 


Ch.    2  INSANE    I'EKSONS.  §§     15^  16 

his  partner  will  prove  temporary  merely,  and  it  becomes  prac- 
ticable for  him  to  resume  business.^  In  such  case,  as  long  as 
the  sane  partner  continues  to  carry  on  the  business  without 
taking  steps  to  dissolve  the  partnership,  there  can  be  no  dissolu- 
tion, or  he  be  excused  from  afterwards  accounting  for  the 
profits  actually  derived  by  hira  from  the  business  of  the  firm.^ 
An  insane  person  cannot  be  adjudicated  a  bankrupt,  but  a 
partnership,  of  which  he  is  a  partner  can  be,  and  the  firm's  prop- 
erty applied  to  the  partnership  debts. ^® 

§  1 6.  Life  insurance  —  No   suicide   clause   in   policy In 

many  life  insurance  policies  a  clause  is  inserted  that  the  insured 
shall  not  recover  on  the  policy  if  he  commits  suicide.  This 
question  brings  in  the  question  of  the  sanity  of  the  insured  at 
the  time  of  the  suicide.     The  adjudged  cases  are  conflicting. 

It  has  been  held  that  suicide  will  avoid  a  policy,  although 
there  are  no  conditions  to  that  effect  in  the  policy.^  Of  course, 
if  the  insured  obtained  the  insurance  with  the  intent  to  com- 
mit suicide,  while  sane,  this  changes  the  rule  and  the  policy 
will  be  void.^      This  doctrine  is  qualified  by  stating  that  the 

8.  Raymond  v.  Vaughn,  128  111.  also,  Cook  v.  Collingridge.  1  Jac. 
256,  121  N.  E.  556,  4  L.  R.  A.  440,  608;  White  v.  Gardner,  37  Tex. 
15  Am.  St.  Rep.  112;  Jones  v.  Noy,  407;Chaney  v.  Smallwood,  1  Gill. 
2  Mylne  &  K.  125;  Berch  v.  Frolick,  (Md.)  367;  Cranshay  v.  Collins,  15 
1    Phil.    172,    3    Kent's    Com.    58;  Ves.  218. 

Pierce  v.   Chamberlain,  2  Ves.   Sr.  10.  In    re   Stein,    127    Fed.   Rep. 

33;    Bagshaw   v.   Parker,    10   Beav.  29. 

532;   Robertson  v.  Loekie,   15  Sim.  1.  Hartman  v.   Ins.   Co.,   21   Pa. 

285;     Uberoth    v.    Bank,    9    Phila.  St.  466;  Horn  v.  Ins.  Co.,  30  L.  J. 

(Pa.)    83;    Doughty   v.   Doughty,   3  Ch.  511,  4  L.  T.  N.  S.  142;  Supreme 

Hals.   (N.  J.  Ch.)   227.  Comandery   v.    Ainsworth,    71    Ala. 

9.  Raymond  v.  Vaughn,  128  111.  436,  46  Am.  Rep,  332.  See,  also, 
256,  21  N.  E.  556,  4  L.  R.  A.  440,  Hatch  v.  Ins.  Co.,  120  Mass.  550, 
15  Am.  St.  Rep.  112;.  Brown  v.  21  Am.  Rep.  541  and  note. 
Richardson,  133  Mass.  293;  Free-  2.  Smith  v.  Benefit  Soc,  51  Hun 
man  v.  Freeman,  136  Mass.  260;  (N.  Y.)  57,  4  N.  Y.  S.  531;  Ritter 
Perry    on    Trusts,    127,    128.      See, 

33 


§§    16,  17  FBEEDOM    OF    CONTKACT.  Ch.    2 

suicide  must  be  felonious  and  not  accidental,  and  the  party  must 
not  be  insane.  This  qualified  application  will  not  allow  the 
policy  to  be  avoided  when  the  condition,  exists.^  And  if  the 
insurance  is  for  the  benefit  of  another,  suicide  is  no  defense 
unless  the  policy  provides  for  avoidance  in  case  of  suicide.* 
When  a  policy  is  taken  out  by  a  person  whose  life  is  insured, 
and  the  policy  is  made  payable  to  himself,  his  executors,  ad- 
ministrators, or  assigns,  and  provides  for  the  payment  of  the 
sum  stipulated  if  the  insured  took  his  life  while  sane,  the  policy 
is  void  as  against  public  policy.*^ 

§  17.  Life  insurance  —  Impulsive  insanity. —  That  form  of 
insanity  called  impulsive  insanity,  by  which  a  person  is  irre- 
sistibly impelled  to  the  commission  of  an  act,  is  recognized  by 
medical  writers  on  this  subject.®  It  is  sometimes  accompanied 
by  delusions,  and  sometimes  exists  without  them.  It  is  an  im- 
pulse of  a  party  of  unsound  mind.  The  cases  are  to  be  dis- 
tinguished from  those  where  persons  in  the  possession  of  their 
reasoning  faculties  are  impelled  by  passion,  merely,  in  the  same 
direction.  These  last  are  not  insanity,  and  suicide  committed 
under  such  conditions  will  avoid  a  policy  with  the  suicide  clause. 

The  true  test  lies  in  the  word  power.  The  policy  is  avoided, 
unless  his  mind  is  so  impaired  that  he  does  not  understand  the 
consequences  of  his  action,  and  that  death  would  ensue.     If  he 

V.  Insurance  Co.,  169  U.  S.  139,  18  5.  Ritter    v.    Insurance    Co.,    169 

S.  Ct.  300.  U.  S.  139,  18  S.  Ct.  300. 

3.  Horn  v.  Ins.  Ca.,  30  L.  J,  Ch.  6.  Borradaile  v.  Hunter,  5  Man. 
511,  4  L.  T.  N.  S.  142.  &  Gr.  639;  Dean  v.  Ins.  Co.,  4  Allen 

4.  Darrow  v.  Family  Fund  Soc,  (Mass.)  96;  Newton  v.  Ins.  Co.,  76 
116  N.  Y.  531,  22  N.  E.  1093,  15  N.  Y.  426,  32  Am.  Rep.  335;  Schef- 
Am.  St.  Rep.  430 ;  Kerr  v.  Benefit  fer  v.  Ins.  Co.,  25  Minn.  534 ;  Amer- 
Asso.,  39  Minn.  174,  39  N.  W.  312,  ican  Life  Ins.  Co.  v.  Isett,  74  Pa. 
12  Am.  St.  Rep.  631;  Fitch  v.  Ins.  St.  176;  Manhattan  Life  Ins.  Co.  v. 
Co.,  59  N.  Y.  557,  17  Am.  Rep.  372;  Broughton,  109  U.  S.  121,  3  S.  Ct. 
Morris   v.   Assurance   Co.,    183   Pa.  131. 

St.  563,  39  A.  52. 

34 


Ch.    2  INSANE    PERSONS.  §§    17,  18 

exercises  volition,  is  capable  of  forming  an  intention  and  with 
full  knowledge  that  death  will  follow  his  action,  his  mind  con- 
curring in  the  act,  he  voluntarily  destroys  his  own  life,  and  the 
policy  with  a  suicide  clause,  becomes  null  and  voidJ 

§  1 8.  The  question  of  right  and  wrong  —  English  doctrine. 
—  The  English  doctrine  is  that  all  the  contract  requires  is,  that 
the  act  of  self-destruction  shall  be  the  voluntary  and  willful  act 
of  a  man  having  at  the  time  sufficient  powers  of  mind  and  reason 
to  understand  the  physical  nature  and  consequences  of  such  act 
of  suicide,  and  having  at  the  time  a  purpose  and  intention  to 
cause  his  own  death  by  that  act,  and  the  question  whether  at  the 
time  he  was  capable  of  understanding  the  moral  nature  and 
quality  of  his  purpose,  is  not  relevant  to  the  inquiry  further 
than  as  it  might  help  to  illustrate  the  extent  of  his  capacity  to 
understand  the  physical  character  of  the  act  itself.^  That  is, 
the  terms  of  the  condition  include  all  acts  of  voluntary  self-de- 
struction ;  whether  the  party  is  a  voluntary  moral  agent,  is  not 
in  issue. ^ 

The  English  judges  refuse  to  apply  to  the  act  of  the  insured 
in  causing  his  death  the  principles  of  legal  and  moral  responsi- 
bility recognized  in  cases  where  the  contract,  the  last  will,  or  the 
alleged  crime  of  such  person  may  be  in  issue.  This  English  rule 
has  been  adopted  by  four  of  the  States.^ 

7.  Weed   v.    Ins.    Co.,    70   N.   Y.  3.  Mecham  v.  Ins.  Co.,  120  N.  Y. 

561.  237,  24  N.  E.  283;  Weed  v.  Ins.  Co., 

1.  Borradaile  v.  Hunter,  5  Man.  70  N.  Y.  561;  Dean  v.  Ins.  Co.,  4 
&  Gr.  639;  Bayley  v.  Alexander,  Allen  (Mass.)  96;  Cooper  v.  Ins. 
cited  in  Biddle  on  Ins.,  832.  Co.,  102  Mass.  227,  3  Am.  Rep.  451 

2.  Clift  V.  Schwabe,  3  C.  B.  437;  and  note;  Gay  v.  Ins.  Co.,  9  Blatch. 
White  V.  Ins.  Co.,  38  L.  J.  Ch.  53;  C.  C.  142;  Nimiek  v.  Ins.  Co.,  10 
Dufaur  v.  Assurance  Co.,  25  Beav.  Am.  L.  Reg.  N.  S.  102.  See,  also. 
599;  Stormont  v.  Assurance  Co.,  1  St.  Louis  Life  Ins.  Co.  v.  Graves,  6 
Fost.  &  F.  22.  Bush     (Ky.)     268;     Knickerbocker 


L.  Ins.  Co.  V.  Peters,  42  Md.  414. 


35 


§    19  FREEDOM    OF    CONTRACT.  Ch.    2 

§  19.  American  doctrine —  The  American  doctrine,  when 
the  policy  contains  a  suicide  clause,  is  that  if  the  assured,  being 
in  possession  of  his  ordinary  reasoning  faculties,  from  anger, 
pride,  jealousy,  or  a  desire  to  escape  from  the  ills  of  life,  in- 
tentionally takes  his  own  life,  the  proviso  attaches,  and  there 
can  be  no  recovery.  If  the  death  is  caused  by  the  voluntary  act 
of  the  insured,  he  knowing  and  intending  that  his  death  shall 
be  the  result  of  his  act,  but  when  his  reasoning  faculties  are  so 
far  impaired  that  he  is  not  able  to  understand  the  moral  char- 
acter, the  general  nature,  consequences,  and  effect  of  the  act  he 
is  about  to  commit,  which  he  has  not  the  power  to  resist,  such 
death  is  not  within  the  contemplation  of  the  parties  to  the  con- 
tract, and  the  insurer  is  liable.^  It  is  the  established  doctrine  of 
most  of  the  American  courts  that  if  one  whose  life  is  insured  in- 
tentionally kills  himself  when  his  reasoning  faculties  are  so  im- 
paired by  insanity  that  he  is  unable  to  understand  the  moral 
character  of  his  act,  even  if  he  does  understand  its  physical 
nature,  consequence,  and  effect,  it  is  not  "  suicide  "  or  "  self- 
destiiiction,"  or  "  dying  by  his  own  hand,"  within  the  meaning 
of  those  words  in  a  clause  excepting  risks  out  of  the  policy,  and 
containing  no  further  words  expressly  extending  the  exception  to 
such  cases.^ 

The  clauses  used  are  various  in  form,  but  are  considered  sy- 
nonymously and  mean  the  same  thing,  whether  described  by 
words  of  Saxon  or  of  Latin  origin,  or  partly  of  one  and  partly 

1.  Mutual  Life  Ins.  Co.  v.  Terry,  dent  Ins.  Co.  v.  Crandel,  120  U.  S. 
15  Wall.  (U.  S.)  580.  This  case  is  527,  7  S.  Ct.  685;  Connecticut  Life 
distinguished  in  Ritter  v.  Ins.  Co.,  Ins.  Co.  v.  Akens,  150  U.  S.  468,  14 
169  U.  S.   139,   18  S.  Ct.  300.  S.   Ct.    155;    Supreme   Commandery 

2.  Bigelow  V.  Ins.  Co.,  93  U.  S.  v.  Ainsworth,  71  Ala.  436,  46  Am. 
284;  Insurance  Co.  v.  Rodel,  95  U.  Rep.  332;  Life  Asso.  v.  Waller,  57 
S.  232;  Manhattan  Ins.  Co.  v.  Ga.  533;  New  Home  L.  Asso.  v. 
Broughton,  109  U.  S.  121,  3  S.  Ct.  Hagler,  29  111.  App.  437;  Scarth  v. 
99 ;  Connecticut  Ins.  Co.  v.  Lathrop,  Ins.  Co.,  75  Iowa,  346,  39  N.  W. 
Ill  U.  &.  612,  4  S.  Ct.  533;  Acci-  658;   Michigan  Mut.  L.  Ins.  Co.  v. 

36 


Ch.    2  INSANE    I'EltJSONS.  §§    10,  20 

of  the  other.^  TTpon  that  part  of  the  clause  which  requires 
"  proof  that  the  same  is  the  direct  result  of  disease  or  of  acci- 
dent occurring  without  the  voluntary  act  of  the  insured,"  the 
word  "  proof  "  means,  not  the  proof  required  as  a  preliminary 
to  bringing  suit  on  the  policy,  but  the  proof  necessary  to  estab- 
lish the  liability  of  the  insurer.  And  in  making  out  such  proof, 
the  plaintiff  is  entitled  tO'  the  benefit  of  the  presumption  that  a 
sane  man  will  not  commit  suicide,  and  of  other  rules  of  law 
establislied  for  the  guidance  of  courts  and  juries  in  the  investi- 
gation and  determination  of  facts.^ 

§  2o.  "Die  by  suicide,  sane  or  insane." — Formerly  policies 
provided,  generally,  that  they  should  be  void  in  case  of  death 
by  "  suicide,"  or  ''  by  one's  own  hand,"  without  further  quali- 
fications. These  terms  are  synonymous  and  convey  the  same 
idea.  And  in  the  United  States  such  a  condition  refers  to  an  act 
of  criminal  self-destruction,  and  does  not  apply  to  an  insane 
person.^  So  now  insurance  companies  adopt  a  more  specific 
condition  as  to  liability  in  cases  of  death  by  suicide,  and  add 
in  the  suicide  clause  "  die  by  suicide,  sane  or  insane."  This 
clause  has  been  before  the  courts  for  construction,  and  it  is  gen- 
erally held  that  the  insurers  are  not  liable  if  the  insured  design- 
edly dies  by  his  own  hand,  that  is,  if  he  commits  the  act  inten- 

Naugle,  130  Ind.  79,  29  N.  E.  393;  v.    Walden    (Tex.    Civ.)    26    S.    W. 

Phillips   V.   Ins.   Co.,   26   La.   Ann.  Rep.  1012. 

404,  21   Am.  Rep.  549;   Eastabrook  3.  Connecticut     L.     Ins.     Co.     v. 

V.  Ins.  Co.,  54  Me.  224,  89  Am.  Dec.  Akens,    150   U.    S.    468,    14    S.    Ct. 

743 ;    John  Hancock  L.   Ins.   Co.  v.  155. 

Moore,  34  Mich.  41;  Sclieffer  v.  Ins.  4.  Travellers'  Ins.  Co.  V.  McKon- 

Co.,  25  Minn.  534;   Schultz  v.  Ins.  key,    127   U.   S.   661,   667,  8   S.   Ct. 

Co.,  40  Ohio  St.  217,  48  Am.  Rep.  1370;  Home  Ben.  Asso.  v.  Sargent, 

676;  Connecticut  Mut.  L.  Ins.  Co.  v.  142  U.  S.  691,  12  S.  Ct.  332. 

Groom,  86  Pa.  St.  92,  27  Am.  Rep.  1.  Scheffer  v.  Ins.  Co.,  25  Minn. 

689 ;    Phadenhauer    v.    Ins.    Co.,    7  534 ;  Eastabrook  v.  Ins.  Co.,  54  Me. 

Heisk    (Tenn.)     567,    19    Am.    Rep.  224,   89   Am.    Dec.    743;    Scarth   v. 

623  and  note;   Mutual  L.  Ins.  Co.  Ins.   Co.,  75   Iowa,  346,   39  N.  W. 

658. 
37 


20 


FREEDOM    OF    CONTRACT. 


Ch.  2 


tionally  with  knowledge  of  its  consequences,  although  uncon- 
scious of  its  criminal  character.  And  the  doctrine  of  some  of 
the  States  goes  further  and  holds  that  the  policy  is  void  not- 
withstanding the  self-destruction  is  accomplished  at  a  time  when 
the  insured  is  wholly  unconscious  of  the  act.^ 

But  it  is  held  by  some  courts  that  the  act  of  the  insured  must 
be  voluntary  and  intentional,  although  he  may  at  the  time  be 
incapable  of  discerning  its  moral  quality.^  Of  course  where  the 
death  is  accidental  the  death  does  not  come  within  the  clause. 
The  clause  was  never  intended  to  include  death  by  accident,  as 
by  taking  poison  by  mistake,  the  accidental  discharge  of  a  gun 
or  pistol  held  in  the  hands  of  the  insured.^  It  generally  means 
all  suicidal  acts,  whether  such  are  denominated  as  criminal,  or 
such  as  arise  from  insanity,  and  as  to  the  matter  of  proof,  sui- 
cide itself  and  nothing  more,  is  not  suflScient  to  prove  insanity." 


2.  Streeter  v.  Life  and  Accident 
Soc,  65  Mich.  199,  31  N.  W.  779; 
Salentine  v.  Ins.  Co.,  24  Fed.  159; 
Riley  v.  Ins.  Co.,  25  Fed.  Rep.  315; 
Penfold  V.  Ins.  Co.,  85  N.  Y.  317, 
39  Am.  Rep.  G60;  Scarth  v.  Ins. 
Co.,  75  Iowa,  346,  39  N.  W.  658; 
Billings  V.  Ins.  Co.,  64  Vt.  78,  24  A. 
656,  17  L.  R.  A.  89  and  note,  33 
Am.  St.  Rep.  913;  DeGogorza  v. 
Ins.  Co.,  65  N.  Y.  232;  Bigelow  v. 
Ins.  Co.,  93  U.  S.  284 ;  Chapman  v. 
Ins.  Co.,  6  Biss.  C.  C.  238;  Dennis 
V.  rns.  Co.,  84  Cal.  570,  24  P.  120. 

3.  Sabin  v.  Nat.  Union,  90  Mich. 
177,  51  N.  W.  202;  Adkins  v.  Ins. 
Co.,  70  Mo.  27,  35  Am.  Rep.  410; 
Pierce  v.  Ins.  Co.,  34  Wis.  389; 
Suppiger  v.  Ins.  Co.,  20  111.  App. 
595;  Mutual  Ben.  L.  Ins.  Co.  v. 
Davies,  87  Ky.  541,  9  S.  W.  812; 
Northwestern  Mut.  L.  Ins.  Co.  v. 
Hazelett,  105  Ind.  212,  4  N.  E.  582, 
55   Am.   Rep.    192. 

4.  Michigan  Mut.   L.   Ins.   Co.  v. 


Naugle,  130  Ind.  79,  29  N.  E.  393; 
Scarth  v.  Ins.  Co.,  75  Iowa,  346,  39 
N.  W.  658;  Billings  v.  Ins.  Co.,  64 
Vt.  78,  24  A.  656,  17  L.  R.  A.  89 
and  note;  Home  Benefit  Asso.  v. 
Sargent,  142  U.  S.  691,  12  S.  Ct. 
332;  Pierce  v.  Ins.  Co.,  34  Wis. 
389;  Penfold  v.  Ins.  Co.,  85  N.  Y. 
317,  39  Am.  Rep.  660;  Northwestern 
Mut.  L.  Ins.  Co.  V.  Hazelett,  105 
Ind.  212,  4  N.  E.  582,  55  Am.  Rep. 
192.  See,  also.  Pollock  v.  Acci. 
Asso.  102  Pa.  St.  230,  48  Am.  Rep. 
204. 

5.  Merritt  v.  Ins.  Co.,  55  Ga. 
103;  Mutual  Benefit  L.  Ins.  Co.  v. 
Davies,  85  Ky.  541,  9  S.  W.  812; 
Blackstone  v.  Ins.  Co.,  74  Mich. 
592,  42  N.  W.  156;  Weed  v.  Ins. 
Co.,  70  N.  Y.  561 ;  Meacham  v.  Ins. 
Co.,  120  N.  Y.  237,  24  N.  E.  283; 
Pendenhaur  v.  Ins.  Co.,  7  Hiesk. 
(Tenn.)  567;  Knickerbocker  Ins. 
Co.  V.  Peters,  42  Md.  414. 


38 


Ch.    2  INSANE    PERSONS.  §    21 

ARTICLE  II. 

Ratification  and  Disaffirmance. 

Section 21.  Affirmance  and  Avoidance  of  Contracts. 

22.  Bona  Fide  Purchaser  from  Insane  Person. 

23.  Return  of  Consideration. 

24.  Bona  Fide  Grantee  of  the  Grantee  of  the  Lunatic — Rights  of 

Third  Parties. 

25.  Relief  in  Equity. 

§  21.  Affirmance  and  avoidance  of  contracts. —  A  deed  made 
in  proper  form,  executed  and  recorded,  is  equivalent  to  a  feoff- 
ment with  liverj  of  seisin.^  Without  the  registry,  where  the  de- 
livery of  the  deed  is  accompanied  by  the  surrender  of  the  pos- 
session of  the  conveyed  premises  to  the  grantee,  the  effect  would 
be  the  same,  as  to  the  conveyance  by  a  man  non  compos  mentis, 
as  would  result  from  a  feoffment  made  by  him.  A  deed  of  bar- 
gain and  sale  places  the  grantee  upon  the  footing  of  a  feoffment, 
as  it  passes  the  estate  by  the  delivery  of  the  land ;  such  grants  or 
deeds  as  take  effect  by  delivery  of  the  land  being  only  voidable.^ 
Therefore,  an  insane  man's  deed  is  only  voidable  and  not  void, 
and  may  be  ratified  by  him  when  he  is  of  sane  mind,  whether 
the  deed  is  recorded  or  not.^  So  a  person  of  full  age,  who 
has  been  insane  may,  after  he  has  sufficiently  recovered  his  rea- 
son to  understand  the  character  of  his  act,  disaffirm  his  deed 
made  by  him  while  he  was  insane  and  incapable  to  contract,* 
and  he  may  proceed  in  a  court  of  equity  to  rescind.^ 

1.  Somes  V.  Brewer,  2  Pick.  Wall.  (U.  S.)  20;  Henry  v.  Fine, 
(Mass.)  197;  Riley  v.  Carter,  76  23  Ark.  417 ;  Betts  v.  Carroll,  6  Mo. 
Md.  581,  25  A.  667,  19  L.  R.  A.  489  App.  518;  Schuflf  v.  Rawson,  79 
and  note,  37  Am.  St.  Rep.  443.  Ind.  458;    Boyer  v.   Berryman,   123 

2.  Somes  v.  Brewer,  2  Pick.  Ind.  451,  24  N.  E.  249;  Ashmead  v. 
(Mass.)    197.  Reynolds,    127    Ind.   441,   26   X.    E. 

3.  Allis  V.  Billings,  6  Met.  80;  Gibson  v.  Soper,  6  Gray 
(Mass.)  415,  39  Am.  Dee.  744  and  (Mass.)  279,  66  Am.  Dec.  414; 
note.  Burnham  v.  Kidwell,  113  111.  425; 

4.  Tolson  V.  Garner,  15  Mo.  494;  Turner  v.   Rusk,  53  Md.  65. 
Farley  v.   Parker,   6   Oreg.    105,   25  5.  Turner  v.  Rusk,  53  Md.  65. 
Am.  Rep.  504;   Dexter  v.  Hall,  15 

39 


§21  FREEDOM    OF    CONTRACT.  Ch.    2 

And  an  exchange  of  property  made  bj  a  person  of  mind  so 
insane  that  the  want  of  mental  capacity  is  apparent  to  any  one 
of  ordinary  prudence  and  observation  conversing  with  him,  is 
voidable,  and  his  guardian  may  rescind  the  deed.^  After  the 
death  of  the  insane  person,  his  personal  representatives  or  heirs 
may  rescind.'  And  this  right  to  affirm  or  avoid  is  personal  to  the 
insane  person  and  his  legal  representatives,  and  cannot  be  taken 
advantage  of  by  the  other  party  or  by  a  third  person.^  And 
ratification  or  avoidance  may  be  by  action,  by  express  words  or 
by  suit.^  A  deed  may  be  ratified  by  acts  of  acquiescence  after 
the  disability  is  removed ;  but  the  acts  of  confirmation  to  es- 
tablish the  deed,  must  show  an  intention  to  confirm  it,  and  some 
courts  say  with  knowledge  of  its  character  and  that  it  is  void- 
able.i" 

In  the  absence  of  statutory  provisions,  a  voidable  deed  may 
be  ratified  by  long  acquiescence,  and  by  permitting  the  grantee 
to  do  acts  by  which  his  condition  is  changed,  and  which  will 
prejudice  him  if  the  deed  is  set  aside.  The  difference  between 
a  void  and  a  voidable  deed  as  defined  in  the  law,  is  that  the 
former  cannot  be  ratified  by  acquiescence  short  of  the  statutory 
limitations,  while  the  latter  may  be,  by  time  and  circumstance, 
within  such  limitations."  Any  distinct  and  decisive  act  of 
requisition  as  a  valid  and  subsisting  contract,  is  competent  evi- 

6.  Allis     V.      Billings,      6      Met.  Sears,  4  Allen   (Mass.)  336,  81  Am. 
(Mass.)   415,  39  Am.  Dec.  744  and  Dec.  707;  Compare  Burke  v.  Allen, 
note;    Halley   v.    Troester,    72    Mo.  29  N.  H.  106,  61  Am.  Dec.  642. 
73;  Valpey  v.  Rea,  130  Mass.  384;  9.  Ashmead  v.  Reynolds,  127  Ind. 
McClain  v.  Davis,  77  Ind.  419.  441,  26  N.  E.  80;   Gibson  v.  Soper, 

7.  Hovey  v.  Hobson,  53  Me.  451,  6  Gray    (Mass.)    283. 

89  Am.  Dec.  705;  Schuff  v.  Rawson,  10.  Eaton  v.  Eaton,  37  N.  J.  L. 

79  Ind.  458;  Campbell  v.  Kiihn,  45  108,    18   Am.   Rep.    716;    Tucker   v. 

Mich.  513,  8  N.  523,  40  Am.  Rep.  Moreland,   10  Pet.    (U.  S.)    64. 

479;  Valpey  v.  Rea,  130  Mass.  384.  11.  Eaton  v.  Eaton,  37  N.  J.  L. 

8.  Allen   v.    Berryhill,    27    Iowa,  108,  18  Am.  Rep.  716. 
534,    1    Am.   Rep.    309;    Carrier   v. 

40 


Oh.    2  INSANE    PERSONS.  §§    21,  22 

dence  of  ratification.     A  new  delivery  of  a  deed  is  not  requisite 
as  it  would  be  if  the  deed  of  an  insane  person  was  void.^- 

§  22.  Bona  fide  purchaser  from  insane  person. —  When  the 
contract  is  executed  it  is  held  by  many  American  courts,  if  not 
by  a  majority  of  them,  that  the  insane  party  when  of  sound 
mind,  may  avoid  it,  though  it  be  fair  and  reasonable,  and  the 
otlier  party  acted  in  a  ho7ia  fide  manner,  and  the  parties  cannot 
be  placed  in  statu  quo.  Because  to  say  that  an  insane  man,  be- 
fore he  can  avoid  his  deed,  must  put  the  grantee  la  statu  quo, 
would  be  to  say  in  effect  in  most  cases  that  his  deed  shall  not  be 
avoided  at  all.  The  more  insane  the  grantor  was  when  the  de^d 
was  made,  the  less  likely  will  he  be  to  retain  the  fruits  of  his 
bargain,  so  as  to  be  able  to  make  restitution.  If  he  was  so  far 
demented  as  not  to  know  or  recollect  what  the  bargain  was,  the 
difficulty  will  be  still  greater.  This  view  of  the  case  is  certainly 
sound.^  Of  course,  all  the  courts  agree  where  fraud  is  know- 
ingly practiced  upon  the  insane  grantor  that  he  may  avoid 
without  placing  the  grantee  in  statu  quo} 

In  England,  and  by  many  of  the  American  courts,  it  is  held 
that  where  persons  apparently  of  sound  mind  and  not  known  to 
be  otherwise,  enter  into  a  contract  which  is  fair  and  bona  fide, 

12.  Howe  V.  Howe,  99  Mass.  98.  v.  Scovell,  94  Pa.   St.   48,   39  Am. 

See,    also,    Campbell    v.    Kuhn,    45  Rep.  766;   Somers  v.  Pumphrey,  24 

Mich.   513,  8  N.  523,  40  Am.   Rep.  Ind.    231;    Flanders    v.    Davis,    19 

479;  Jones  v.  Evans,  7  Dana  (Ky.)  N.   H.    139;    Chandler   v.   Simmons, 

96;      Allis     v.      Billings,     6     Met.  97  Mass.  508,  514,  93  Am.  Dec.  117 

(Mass.)    415,  39  Am.  Dec.  744  and  and      note;      Brigham      v.      Fayer- 

note;     Gibson    v.     Soper,     6     Gray  weather,    144    Mass.    48,    10    N.    E. 

(Mass.)   279,  66  Am.  Dec.  414.  735;  Rogers  v.  Blackwell,  49  Mich. 

1.  Simonton   v.   Bacon,   49   Miss.  192;     Seaver    v.    Phelps,    11    Pick. 

582;    Brantley    v.    Wolf,    60    Miss.  (Mass.)     304,    22    Am.    Dec.    372; 

420;    Henry  v.   Fine,  23  Ark.  417;  Sullivan   v.   Flynn.    20   D.    C.    396; 

Gibson   v.    Soper,   6   Gray    (Mass.)  Pearl  v.  McDowell,  3  J.  J.  Marsh. 

279.  66  Am.  Dec.  414;   Ricketts  v.  (Ky.)    658,  20  Am.  Dec.  199. 
JolliflF,  62  Miss.  440;  Chew  v.  Bank,  2.  Schmidt    v.     Ittman,     40    La. 

14  Md.   318;    Hovey  v.  Hobson,   53  Ann.  888;  Elder  v.  Schumacher,  18 

Me.    453:     Fitzgerald    v.     Reed.    9  Colo.  433,  33  P.   175;   Alexander  v. 

Smedes  &  M.  (Miss.)  94;  Crawford  Haskins,  68  Iowa,  73,  25  N.  W.  935. 

41 


§§    22,  23  FREEDOM    OF    COXTRACT.  Ch.    2 

and  which  is  executed  and  completed,  and  the  property,  the  sub- 
ject-matter of  the  contract,  cannot  be  restored  so  as  to  put  the 
parties  in  statu  quo,  such  contract  cannot  be  set  aside  either  by 
the  lunatic  when  he  becomes  sane  or  those  who  represent  him.^ 
This  doctrine  is  antagonistic  to  that  held  as  to  infants  when 
avoiding  their  contracts  where  they  have  not  the  power  to  re- 
store the  property  received.  The  reason  of  this  distinction  is 
not  based  upon  any  solid  foundation. 

Some  courts  hold  that  if  the  insane  party  has  received  no 
benefit  from  the  contract  he  can  rescind,  notwithstanding  the 
good  faith  of  the  other  party,  but  if  he  has  received  the  ordinary 
benefits  of  such  a  contract,  he  is  bound.* 

§  23.  Return  of  consideration. —  As  seen  in  the  preceding 
section,  the  law  in  England  and  in  many  of  the  States,  is  an  in- 
sane man  on  becoming  sane  cannot  avoid  his  contracts  unless  he 
returns  the  consideration,  thus  putting  the  parties  in  statu  quo, 
provided  the  other  party  acted  in  good  faith. 

But  another  line  of  authorities  in  the  United  States  holds 
with  much  reason,  that  lunatics  are  not  bound  by  their  contracts 
no  more  than  infants,  though  no  fraud  or  imposition  has  been 

3.  Yanger  v.  Skinner,  1  McCart.  111.  104;   Carr  v.  Halliday,  5  Ired. 

(N.  J.  Ch.)    389;    Molton  v.  Cam-  (N.  Car.)  67;  Young  v.  Stevens,  48 

roux,  2  Exch.  487,  4  Exeh.  17;  Ad-  N.    H.    136;    Schaps   v.    Lehner,    54 

dison  V.  Dawson,  2  Vern.  678;  Price  Minn.  208,  55  N.  W.  911;  Shoultera 

V.   Berrington,   3   Macn.   &  G.   486;  v.   Allen,   51    Mich.   529,   16   N.   W. 

Myers  v.  Knabe,  51  Kans.  720,  33  888;  Abbott  v.  Creal,  56  Iowa,  175, 

P.   602;    Eaton  v.   Eaton,  37   N.  J.  9  N.  115;  Northwestern  Ins.  Co.  v. 

L.  108,  18  Am.  Kep.  716;  Reggan  v.  Blankenship,   94  Ind.   535,  48  Am. 

Green,  80  N.  Car.  236,  30  Am.  Rep.  Rep.   185;   Ashcraft  v.  De  Armond, 

77;   Lancaster  Co.  Bank  v.  Moore,  44  Iowa,  229;   Rusk  v.  Fenton,  14 

78  Pa.  St.  407,  21  Am.  Rep.  24  and  Bush.  (Ky.)  490,  29  Am.  Rep.  413; 
note;  McCormick  v.  Littler,  85  111.  Sewing  Mach.  Co.  v.  Barnard,  43 
62;   Mutual  Life  Ins.   Co.  v.  Hunt,  Mich.  379,  5  N.  411;   Copenrath  v. 

79  N.  Y.  541;   Boyer  v.  Berryman,  Kienly,  83  Ind.  18. 

123  Ind.  451,  24  N.  E.  249;   Grib-  4.  Van  Patton  v.  Beals,  46  Iowa, 

ben  V.  Maxwell,  34  Kans.  8,  55  Am.  63;  Lincoln  v.  Buckmaster,  32  Vt. 

Rep.  233 ;  Leavitt  v.  Files,  38  Kans.  658. 
26,  7   P.  584;    Scanlon  v.  Cobb,  84 

42 


eh.    2  INSANE    PERSONS.  §§    23,  24 

practiced  upon  them,  even  though  the  consideration  cannot  be 
returned.^ 

And  so  an  insane  person  or  his  guardian  may  avoid  a  deed 
which  was  made  while  the  grantor  was  insane,  without  first  re- 
storing the  consideration  to  the  grantee,  the  deed  not  having 
been  ratified.^  Accordingly  if  the  party  wishes  to  avoid  his  con- 
tract, he  need  not  restore  the  consideration  of  an  executory  con- 
tract and  the  party  has  the  notes  which  were  given  for  the  con- 
sideration, then,  in  that  case,  he  must  restore  the  notes  upon  dis- 
aflSrmance  of  the  contract.^  These  cases  place  the  acts  of  luna- 
tics and  infants  upon  the  same  ground  as  to  ratification  and 
avoidance,^  because  the  grants  of  infants  and  persons  non 
compos  mentis  are  parallel  both  in  law  and  reason.^  And, 
hence,  if  the  consideration  was  squandered  during  insanity,  he 
can  disaffirm  his  contract  when  restored  to  sanity  and  not  re- 
turn the  consideration.® 

§  24.  Bona  fide  grantee  of  the  grantee  of  the  lunatic  — 
Rights  of  third  parties. —  A  grantee  of  the  grantee  of  the  in- 
sane party  cannot  demand  the  restoration  of  the  consideration 
when  the  deed  of  the  first  grantor  is  disaffirmed.'^  The  last 
grantee  must  rely  on  the  covenants  of  his  deed  for  restitution, 
and  it  is  not  necessary  that  he  shall  be  placed  in  statu  quo  by 
the  first  grantor  when  the  deed  is  disaffirmed.  It  is  said  that 
the  right  of  an  insane  person  to  avoid  his  contracts  is  an  ab- 
solute and  paramount  right,  superior  to  all  equities  of  other 

1.  Chew   V.    Bank,    14   Md.    318;  5.  Thompson    v.    Leach,    3    Mod. 
Hovey  v.   Hobson,   53   Me.   451,   89       310. 

Am.  Dec.  705.  6.  Rea  v.   Bishop,   41    Neb.   202, 

2.  Gibson     v.     Soper,     6     Gray       59  N.  W.  555;  Ricketts  v.  Jolliffe, 
(Mass.),    279,    66    Am.    Dec.    414;       62   Miss.   440;    Brigham   v.   Fayer- 

Arnold  v.  Richmond  Iron  Works,  1  weather,    144   Mass.   48,    10    N.   E. 

Gray   (Mass.),  434;   Hovey  v.  Hob-  735:  Crawford  v.  Scovell,  94  Pa.  St. 

son,  53  Me.  451,  89  Am.  Dec.  705.  48,   39   Am.   Rep.   766;    Sullivan  v. 

3.  Arnold      v.      Richmond      Iron  Flynn.  20  D.  C.  396. 

Works,   1   Gray    (Mass.),  434.  7.  Dewey  v.   Allgire.   37    Neb.   6, 

4.  Key  v.  Davis,  1  Md.  32.  55  N.  W.  276,  40  Am.  St.  Rep.  468. 


43 


§§    24,  25  FREEDOM    OF    CONTRACT.  Ch.    2 

persons,  and  may  be  exercised  against  ho7ia  fide  purchasers 
from  the  grantee  of  the  insane.^ 

And  this  rule  applies  to  all  third  parties  who  cannot  acquire 
a  valid  title  to  property  though  they  purchase  without  notice 
of  the  infirmity  of  the  party  through  whom  they  trace  their 
title.®  Hence,  an  accommodation  indorser  who  indorses  when 
insane,  is  not  liable  on  the  note  and  can  avoid  it.-^^ 

But  this  rule  is  not  accepted  in  North  Carolina.  In  this 
State  a  purchaser  for  value  and  without  notice  from  one  who 
had  acquired  by  fraudulent  device  a  conveyance,  regular  in 
form  and  sufficient  upon  its  face  to  pass  title,  obtains  a  good 
title,  though  the  deed  might  have  been  adjudged  void  against 
the  first  grantor.^^ 

The  North  Carolina  court  puts  this  decision  upon  the  ground 
of  fraud ;  that  is,  a  deed  taken  from  an  insane  man  is  a  fraud, 
and  while  it  may  be  avoided  as  to  the  first  grantee,  it  cannot  be 
avoided  as  to  the  grantee  of  the  grantee  who  is  a  hona  fide  pur- 
chaser. But  this  reasoning  is  contrary  to  all  other  authority  as 
to  insane  person's  deeds  and  conveyance. 

§  25.  Relief  in  equity. —  A  party  dealing  with  an  insane  man 
in  good  faith  cannot  go  into  a  court  of  equity  for  redress  unless 
the  infirmity  of  the  former  lunatic  is  made  an  instrument  of 
fraud ;  this  is  the  general  rule.  So  courts  of  equity  in  many 
States  will  not  interfere  to  set  aside  the  contracts  of  lunatics 
which  have  been  executed,  and  where  it  is  impracticable  to  re- 
store the  parties  to  their  condition  before  the  contract,  unless 
the  party  contracting  with  the  lunatic  obtained  an  unjust  ad- 

8.  Hovey  v.  Hobson,  53  Me.  451,        Louth,  109  Ind.  315,  10  N.  E.  270, 
458,    89    Am.    Dec.    705;    Compare       58  Am.  Dec.  405. 

Odom  V.  Riddick,  104  N.  Car.  515,  lO.  Wirebach  v.  Bank,  97  Pa.  St. 

10  S.  E.  609,  7  L.  R.  A.  118,  17  Am.  543,  39   Am.   Rep.  821.     See,  also, 

St.  Rep.  686.  Moore  v.  Hershey,  90  Pa.  St.  196; 

9.  Rogers  v.  Blackwell,  49  Mich.  McClain  v.  Davis,  77  Ind.  419. 
192,   13   N.   512;   Dewey  v.  Allgire,  11.  Odom  v.  Riddick,  104  N.  Car. 
37  Neb.  6,  55  N.  W.  276.  40  Am.  St.  515,  10  S.  E.  609,  7  L.  R.  A.  118, 
Rep.  468;  Hovey  v.  Hobson,  53  Me,  17   Am.   St.   Rep.   686. 

451,    89    Am.    Dec.    705;    Hull    v. 

44 


Oh.    2  INSANE    PERSONS.  §    25 

vantage  in  the  contract,  or  knew  of  the  infirmity/  because  it  is 
impracticable  of  doing  full  justice  under  the  circumstances,  and 
the  parties  are  left  to  their  legal  status.^  But  in  many  States 
equity  courts  will  avoid  the  contract  whether  the  parties  are 
placed  in  statu  quo  or  not. 

In  England  and  in  many  of  the  States,  courts  of  equity  will 
not  interfere  to  annul  the  contracts  of  lunatics,  made  with  those 
swho  had  no  reason  to  believe  them  such  at  the  time  the  con- 
tracts were  made  and  have  been  fully  executed,  upon  both  sides, 
and  the  parties  cannot  be  placed  in  statu  quo.  Under  tliis  doc- 
trine a  person  of  apparently  sound  mind  and  not  known  to  be 
otherwise,  enters  into  a  contract,  which  is  fair  and  bona  fide, 
and  which  is  executed  and  completed,  and  the  property,  the 
subject-matter  of  the  contract,  has  been  paid  for  and  fully  en- 
joyed and  cannot  be  restored,  such  contract  cannot  be  set  aside 
at  law  or  in  equity.^ 

Where  the  consideration  of  a  deed  is  not  the  question  at  issue, 
and  the  grantor,  a  weak  minded  person,  is  misinformed  as  to 
the  legal  effect  of  the  deed,  it  cannot  be  avoided  in  a  court  of 
law,  but  a  court  of  equity  will  correct  or  reform  the  deed.^ 
Where  the  law  will  permit  the  insane  person  to  avoid  his  con- 
tract, equity  will  set  it  aside  at  the  suit  of  the  gi*antor  on  attain- 
ing sanity,  or  at  the  suit  of  his  guardian,  executor,  administra- 
tor, or  heirs  f  but  a  stranger  cannot  avoid  an  insane  man's  deed 
or  contract.^ 

1.  Elliot  V.  Ince,  7  DeG.  M.  &  G.  Am.  91;  Kerwin  v.  Ins.  Co.,  25 
474;  Price  v.  Berrington,  3  Macn.  Fed.  Eep.  692;  Miskey's  Appeal, 
&  G.  498;  Selby  v.  Jackson,  6  Beav.  107  Pa.  St.  611;  Hunt  v.  Wier,  4 
192;  Niell  v.  Morley,  9  Ves.  478.  Dana    (Ky.)    347;   Judge  v.   Stone, 

2.  Segeson  v.  Leaky,  2  Atk.  412.  44    N.    H.    593;    Burnham    v.    Kid- 

3.  Molton  V.  Comioux,  2  Exeh.  well,  113  111.  425;  Gribben  v.  Max- 
486,  4  Exch.  17;  Yanger  v.  Skin-  well,  34  Kan.  8,  7  P.  584,  55  Am. 
ner,  1  Macarter   (N.  J.  Ch.)   389.  Rep.  233;  Key  v.  Davis,  1  Md.  32; 

4.  Eaton   v.   Eaton,   37   N.  J.   L.  Campbell  v.  Kulm,  45  Mich.  513,  8 
108,   18  Am.   Rep.   716.     See,  also,  N.  523,  40  Am.  Rep.  475. 
Turner  v.  Rusk,  53  Md.  65;    Long  6.  Ingraham  v.  Baldwin,  9  N.  H. 
V.    Fox,     100    111.    43;     Riggan    V.  45;   Kilbee  v.  Myrick,   12  Fla.  419; 
Green,  80  N.  Car.  239.  Compare  Valpey  v.  Rca,   130  Mass. 

5.  Carew   v.   Johnston,   2   Sch.   &  384. 
Lef.  280;  Fecel  v.  Gumault,  32  La. 

45 


CHAPTER  III. 

Infants. 


ARTICLE  I. 
Capacity  to  Conteact. 

Section  26.  Contracts  are  Voidable,  Void  or  Valid. 

27.  Distinction  Between  Infant's  Contracts  as  Voidable  and  Void 

is  not  Sound. 

28.  Void  Contracts  of  Infants. 

29.  Emancipation  by  Parents. 

30.  Valid  Contracts — Legal  Obligations. 

31.  Marriage  by  Infant. 

32.  Infant   Wife. 

33.  Bastardy. 

34.  Notes  Given  for  Torts. 

35.  Recognizance. 

36.  Enlistment  in  the  Army. 

37.  Partition. 

38.  Shopping — Purchase  of  Goods. 

39.  Contract  for  Necessaries. 

40.  Things  Necessary — Definition. 

41.  Things  Not  Necessary. 

42.  Repairs  on  Real  Estate. 

43.  Things  Necessary. 

44.  In    Business. 

45.  When  an  Infant  Lives  at  Home  With  His  Father. 

46.  Cardinal  Tenets. 

47.  Support  of  Family. 

48.  Payment  of  Minor's  Debts  by  Another, 

49.  Value  of  the  Article  Sold. 

50.  Mixed  Question  of  Law  and  Fact. 

§  26.  Contracts  are  voidable,  void  or  valid. — ^At  common  law 
an  infant  is  a  person  under  twenty-one  years  of  age.  Under  the 
statute  women  become  of  age  at  eighteen  in  Arkansas,  Califor- 
nia, Colorado,  Idaho,  Illinois,  Iowa,  Kansas,  Minnesota,  Mis- 

46 


§§    26,  27  FEEEDOM    OF    CONTKAOT.  Ch.    3 

souri,  Montana,  Nebraska,  Nevada,  New  Mexico  Territory, 
North  Dakota,  Oklahoma  Territory,  Oregon  (or  as  soon  as  mar- 
ried), South  Dakota,  Texas  (if  married,  otherwise  twenty-one), 
Utah,  Vermont,  Washington,  and  Wisconsin  (if  married,  other- 
wise at  twenty-one).  The  law  of  Oregon  applies  to  Alaska 
District.  In  Alabama,  Arkansas,  Georgia,  Kansas,  Louisiana, 
Mississippi,  and  Texas,  all  minors  under  certain  circumstances 
may  be  declared  by  decree  of  court,  of  age,  for  the  purpose  of 
dealing  with  their  property  and  the  right  to  contract  as  adults, 
provided  they  are  capable  of  attending  to  their  own  business.^ 
But  such  statutory  provisions  can  have  no  extra-territorial  ef-' 
fect.2 

Under  the  general  rule  their  contracts  are  voidable  or  valid.^ 
Still  there  are  some  older  cases  and  a  few  modern  that  take  the 
old  decision  and  divide  an  infant's  contracts  into  void,  voidable 
and  valid.*  That  is,  1,  where  the  contract  is  prejudicial  to  the 
infant,  it  is  void ;  2,  where  the  contract  is  uncertain  as  to  the 
benefit  or  prejudice  it  is  voidable ;  3,  where  the  contract  is  for 
the  benefit  of  the  infant,  as  for  necessaries,  it  is  valid.*  This 
rule,  modified  so  as  to  declare  that  the  contract  necessarily 
prejudicial  to  the  infant  is  void,  has  been  adopted  in  some  of 

1.  See  Doles  v.  Hilton,  48  Ark.  Niesz,  17  Colo.  506,  30  P.  215; 
305,  3  S.  W.  393 ;  McKaney  v.  Scranton  v.  Stewart,  52  Ind.  68 ;  111. 
Cooper,  81  Ga.  679,  8  S.  E.  312;  Land,  etc.,  Co.  v.  Bonner,  75  111. 
Succession  of  Gaines,  42  La.  Ann.  315;  Bozeman  v.  Brovraing,  31  Ark. 
699,  7  So.  788;  Brown  v.  Wheelock,  364;  Mustard  v.  Wahlford,  15  Grat. 
75  Tex.  385,  12  S.  W.  Ill,  841;  Cox  (Va.)  329,  79  Am.  Dec.  209;  Pat- 
V.  Johnson,  80  Ala.  22;  Cooper  v.  chin  v.  Cromack,  13  Vt.  330;  Flower 
Rhodes,  30  La.  Ann.  533.  v.  Railroad  Co.  (1894),  2  Q.  B.  65; 

2.  State  V.  Bunce,  65  Mo.  349.  Holmes  v.  Rice,  45  Mich.  142,  7  N. 

3.  Wharton  on  Cont.,  36;  Anson  772;  Weaver  v.  Jones,  24  Ala.  420; 
on  Cont.,  105;  Addison  on  Cont.,  Irvine  v.  Irvine,  9  Wall.  (U.  S.) 
295;  Shipley  v.  Bunn,  125  Mo.  143,  617. 

28  S.  W.  754 ;  Pollock  on  Cont.,  52 ;  4.  Robinson  v.  Coulter,  90  Tenn. 

Lemmon    v.    Beeman,    45    Ohio    St.  705,  18  S.  W.  250,  25  Am.  St.  Rep. 

505,    15    N,    E.    476;    Thompson  v.  708;    Robertson   v.   Weeks,   56   Me. 

Strickland,  52  Miss.  574;   Sparman  102;    Green    v.    Willing,    59    Iowa, 

V.  Keim,  83  N.  Y.  245;  Skinner  v.  679,   13   N.   W.    761,   44   Am.  Rep. 

Plaisted,    43    N.    H.    413;    Allen   v.  696. 

Poole,   54  Miss.    323;    Kendriek  v.  5.  Reave  v.  Boycott,  2  H.  Bl.  511. 

47 


§§    26,  27  INSANE   PERSONS.  Ch.    3 

the  earlier  eases  and  in  a  few  modern.  But  the  great  weight 
of  authority  repudiates  the  distinction  between  void  and  void- 
able contracts,  on  account  of  their  beneficial  or  prejudicial  na- 
ture, and  holds  all  to  be  voidable,^  except  under  a  few  condi- 
tions. 

The  privilege  of  infancy  is  given  to  protect  the  infant  from 
his  indiscretion  and  the  imposition  of  adults.  As  a  result  he 
has  the  inununity  from  liability  until  such  contracts  are  ratified 
by  him  on  becoming  of  age.  Upon  arriving  at  age  he  is  compe- 
tent to  ratify  his  contract  made  in  infancy,  whether  beneficial 
or  prejudicial.  Being  of  full  age,  with  full  capacity,  to  con- 
tract, he  has  a  right  to  ratify  or  avoid  such  contract ;  he  has  as 
much  right  to  do  that,  as  he  has  to  make  a  new  contract.  A  per- 
son sui  juris  is  as  strongly  obligated  by  his  contracts  prejudicial 
as  by  those  beneficial,  and  the  same  principle  applies  where  a 
person  siii  juris  ratifies  and  confirms  his  contract  made  in  in- 
fancy. This  is  the  true  doctrine,  and  the  contrary  is  not  sup- 
ported by  reason  or  by  the  weight  of  authority.  In  England 
many  contracts  of  infants  have  been  declared  void  by  statute.'^ 
The  disability  of  infancy  is  not  of  the  character  of  other  non  sui 
juris  persons.  An  infant  is  compos  mentis,  has  a  sane  mind, 
and,  therefore,  his  disability  is  simply  a  privilege  which  he  can 
exercise.  In  other  words,  he  has  the  privilege  of  avoiding  his 
contracts  under  most  circumstances.  He  is  not  disabled  by  an 
unsound  mind,  and  his  contracts  should  be  held  void  only  when 
such  contracts,  if  made  by  persons  sui  juris,  would  also  be  void. 
His  contracts  are  voidable.  In  other  words  he  has  the  privilege 
of  avoiding  his  contracts. 

§  27.  Distinction  between  infant's  contracts  as  voidable  and 

void. — If  the  decisions  are  investigated  it  will  be  found  that  all 

6.  Lemmon  v.  Beeman,  45  Ohio  c.  82,  sec.  2,  Infant's  Eelief  Act  of 
St.  505,  15  N.  E.  476;  Harner  v.  1874,  see  Coxhead  v.  MulHs,  3  C.  P. 
Dipple,  31  Ohio  St.  72,  27  Am.  Rep.  D.  439:  Ditchman  v.  Worall,  5  C. 
496.  P.    D.    410;    Dublin,    etc.,    Railway 

7.  37  &  38  Vict.,  ch.  62.     As  to  Co.  v.  Black,  8  Exch.  181. 
the  construction  of  37  and  38  Vict., 

48 


§  27 


FREEDOM    OF    CONTRACT. 


Ch.  3 


simple,  and  nearly  all  sealed,  contracts  by  infants,  which  are 
not  founded  upon  an  illegal  consideration,  are  voidable  and  not 
void,  and  may  be  ratified  by  the  infant  on  coming  of  age.  Such 
contracts  remain  a  legal  substratum  for  future  assent,  or  disaf- 
firmance; and  if,  instead  of  avoiding,  he  confirms  them,  when 
he  has  legal  capacity  to  make  a  contract,  they  are  in  all  respects, 
like  his  contracts  made  after  he  is  twenty-one.  Of  course  in 
some  cases  he  may  make  a  valid  contract,  but  all  other  simple 
contracts,  executed  or  executory,  and  nearly  all  sealed  contracts, 
are  voidable  or  confinnable  by  him  at  his  election,  on  arriving 
at  majority.  His  rights  are  fully  protected  by  conferring  on 
him  the  power  to  avoid  his  contracts,  or,  in  other  words,  by  giv- 
ing him  immunity  from  liability  until  such  contracts  are  rati- 
fied  by  him,  after  arriving  at  full  age.^  Hence,  his  contracts 
of  suretyship  are  merely  voidable  f  so  also  an  account  stated  ;^ 
a  conveyance  by  lease  and  release  ;^  a  deed  f  a  mortgage  f  a 


1.  Harner  v.  Dipple,  31  Ohio  St. 
72,  27   Am.  Eep.  496, 

2.  Cole  V.  Pennoyer,  14  111.  158; 
Cummings  v.  Powell,  8  Tex.  80; 
Mustard  v.Wahlford,  15  Grat.  (Va.) 
329,  76  Am.  Dec.  209;  Owen  v. 
Long,  112  Mass.  103;  Reed  v.  Lane, 
61  Vt.  481,  17  A.  796;  Patchiu  v. 
Croniack,  13  Vt.  330;  Curtin  v. 
Patton,  11  Serg.  &  R.  (Pa.)  305; 
Vaughn  v.  Dorr,  20  Ark.  600;  Wil- 
liams V.  Harrison,  11  S.  Car.  412; 
Fetrow  v.  Wiseman,  40  Ind.  148 ; 
Scott  V.  Buchanan,  2  Humph. 
(Tenn.)  468;  Fonda  v.  Van  Home, 
15  Wend.  (N.  Y.)  631;  Williams  v. 
Moore,  11  Mees.  &  Wei.  256;  Shrop- 
shire V.  Burns,  46  Ala.  108;  Harner 
V.  Dipple,  31  Ohio  St.  72,  27  Am. 
Eep.  496. 

3.  Williams  v.  Moore,  11  Mees.  & 
Wei.  256. 

4.  Zouch  V.  Parsons,  3  Burr. 
1794:  Griffith  v.  Schwendenman,  27 
Mo.  412. 


5.  Kendall  v.  Lawrence,  22  Pick. 
(Mass.)    540;    Zouch  v.   Parsons,   3 

Burr.  1794,  1805;  Amer.  Mort.  Co. 
V.  Wright,  101  Ala.  658,  14  So. 
399 ;  Sharp  v.  Robinson,  76  Ala. 
343. 

6.  Salinas  v.  Bennett,  33  S.  Car. 
285;  Barney  v.  Rutledge,  104  Mich. 
289,  62  N.  W.  369;  Logan  v.  Gard- 
ner, 136  Pa.  St.  588,  30  A.  625,  20 
Am.  St.  Rep.  939;  French  v.  Mc- 
Andrew,  61  Miss.  187;  Henry  v. 
Root,  33  N.  Y.  526,  553;  Keichen 
V.  Lee,  11  Paige  (N.  Y.),  107,  42 
Am.  Dec.  101;  Robbins  v.  Eaton, 
10  N.  H.  561;  Badger  v.  Phinney, 
15  Mass.  359,  8  Am.  Dec.  105; 
Callis  V.  Day,  38  Wis.  643;  Dixon 
V.  Merritt,  21  Minn.  196;  Manning 
V.  Johnson,  26  Ala.  446,  62  Am. 
Dec.  732  and  note;  Irvine  v.  Irvine, 
9  Wall.  (U.  S.)  617;  Skinner  v. 
Maxwell,  66  N.  Car.  45. 


40 


27 


INSANE,   PERSONS. 


Ch.  3 


promissory  note;'''  an  indorsement  of  promissory  note  ;^  agree- 
ment to  pay  interest;^  bonds  with  a  i)enalty;^'^  other  bonds ;^^ 
conveyances  f^  exchange  of  property  ;^^  compromise^*  stock  con- 
tracts f^  settlement  of  boundary  between  two  premises  ;^®  agree- 
ments to  render  service  ;^^  appointment  of  agent  ;^^  gifts  ;^^  an  ap- 
peal from  a  justice's  decision  ;^°  judgments  against  him;^^ 
agreement  to  convey  f^  his  covenant  to  carry  and  deliver 
money  f^  his  marriage  settlement  f'^  his  partnership  agree- 
ment^^ 


7.  Boody  V.  McKenney,  23  Me. 
517;  Minock  v.  Shortiidge,  21  Mich. 
304;  State  v.  Plaisted,  43  N.  H. 
413;  Baldwin  v.  Van  Deusen,  37 
N.  Y.  487;  Earle  v.  Heed,  10  Met. 
(Mass.)  389;  Fetrow  v.  Wiseman, 
40  Ind.  148. 

8.  Nightingale  v.  Withington,  15 
Mass.  272;  Frazier  v.  Massey,  14 
Ind.  382;  Briggs  v.  McCabe,  27 
Ind.  327,  89  Am.  Dec.  563;  Willis 
V.   Twombley,    13   Mass.   204. 

9.  Bradley  v.  Pratt,  23  Vt.  378; 
Compare  Fisher  v.  Mowbray,  8 
East,    330. 

10.  Karcher  v.  Green,  8  Houst. 
(Del.)  163;  Weaver  v.  Jones,  24 
Ala.  420;  Mustard  v.  Wahlford,  15 
Gratt.   (Va.)   329,  76  Am.  Dec.  209. 

11.  Conroe  v.  Birdsall,  1  John. 
Cas.  (N.  Y.)  127,  1  Am.  Dec.  105; 
Blake  v.  Supervisors,  61  Barb.  ( N. 
Y.)  149;  Patchin  v.  Cromach,  13 
Vt.  330. 

12.  Davis  V.  Dudley,  70  Me.  236, 
35  Am.  Rep.  318;  Allen  v.  Poole, 
54  Miss.  323;  Schaffer  v.  Lovsette, 
57  Ala.  14;  Illinois  Land  Co.  v. 
Bonner,  75  111.  315;  Tunison  v. 
Chamblin,  88  111.  378;  Logan  v. 
Gardner,  136  Pa.  St.  588,  30  A. 
625,  20  Am.  St.  Eep.  939;  French 
V.  McAndrew,  61  Miss.  187. 

13.  Williams  v.  Brown,  34  Me. 
594. 


14.  Baker  v.  Lovett,  6  Mass.  78, 
4  Am.  Dec.  88;  Barnaby  v.  Bar- 
naby,  1  Pick.  (Mass.)  221;  Ware 
v.  Cartledge,  24  Ala.  622,  60  Am. 
Dec.  489. 

15.  Robinson  v.  Weeks,  56  Me. 
102;  Indianapolis  Chair  Co.  v.  Wil- 
cox,  59   Ind.   429. 

16.  Brown  v.  Caldwell,  10  Serg. 
&  R.   (Pa.)   114,  13  Am.  Dec.  660. 

17.  Clark  v.  Goddard,  39  Ala. 
164,  84  Am.  Dec.  777;  Vent  v.  Os- 
good,  19   Pick.    (Mass.)    572. 

18.  Voglesang  v.  Null,  67  Tex. 
465,  3  S.  W.  451;  Ferguson  v.  Rail- 
road Co.,  73  Tex.  344,  11  S.  W.  347  ; 
Towle  V.  Dresser,  73  Me.  252;  Com- 
pare Ware  v.  Cartledge,  24  Ala. 
622,  60  Am.  Dec.  489. 

19.  Person  v.  Chase,  37  Vt.  647, 
88  Am.  Dec.  630;  Oxley  v.  Tryon, 
25  Iowa,  95. 

20.  Robbins  v.  Cutler,  26  N.  H. 
173. 

21.  England  v.  Garner,  90  N. 
Car.  197;  Trapnall  v.  Bank,  18 
Ark.   53. 

22.  Carrell  v.  Potter,  23  Mich. 
377. 

23.  West  V.  Penny.   16  Ala.   186. 

24.  Whichcote  v.  Lyle,  28  Pa. 
St.  73. 

25.  Jacques  v.  Sax,  39  Iowa, 
367;  Dun  ton  v.  Bro\vn,  31  Mich. 
182. 

50 


Ch.    3  INFANTS.  §    28 

§  28.  Void  contracts  of  infants. — The  general  doctrine  has 
been  stated  as  to  the  conli-acts  of  infants.  But  there  is  a  class 
of  contracts  of  infants  which  are  lield  absolutely  void.  All  con- 
tracts, it  is  said,  which  take  effect  by  delivery  of  the  infant  him- 
self are  voidable  and  not  void ;  it  is  only  such  acts  as  take  effect 
by  the  delivery  of  another  for  the  infant  that  are  absolutel}^ 
void.^ 

So  a  minor's  warrant  to  confess  judgment  is  absolutely  void.^ 
And  likewise  jurisdiction  cannot  be  conferred  upon  a  court  by 
a  -warrant  of  attorney,  executed  by  a  minor  authorizing  the 
entry  of  his  appearance  and  confession  of  judgment.  So  an 
appointment  of  an  attorney  by  an  infant  is  absolutely  void.^ 

So  where  a  minor  purchases  property  which  is  not  a  neces- 
sity and  gives  a  judgment  note,  or  a  note  with  a  warrant  of  at- 
torney attached  thereto,  to  confess  judgment,  the  note  is  only 
voidable,  but  the  warrant  of  attorney  to  confess  the  judgment  is 
absolutely  void.^  And  it  has  also  been  held  that  a  power  of  at- 
torney to  sell  lands  is  void.'"  This  is  about  the  extent  of  void 
contracts  made  by  infants,  and  the  doctrine  of  the  old  cases  has 
been  ignored  and  is  no  longer  the  law,  and  the  practitioner 
should  not  be  led  astray.  The  decisions  of  to-day  do  not  hold 
infants'  contracts  void  except  those  cases  of  the  technical  "'  war- 
rant of  attorney,"  to  appear  in  court  to  bind  the  infant,  and 
perhaps  a  "  power  of  attorney." 

A  decision  of  the  United  States  Supreme  Court  has  attracted  a 
great  deal  of  attention,^  which  apparently  holds  that  an  infant's 

1.  Zouch  V.  Parsons,  3  Burr.  4.  Fuqua  v.  Sliolem,  GO  111.  App. 
1794;  Dexter  v.  Hall,  15  Wall.  (U.  140;  Compare  Morton  v.  Steward, 
S.)    9,  25.  .j  111.  App.  533. 

2.  Fuqua  v.  Sholem,  60  111.  App.  5.  Philpot  v.  Bingham,  55  Ala. 
140;  Cole  V.  Pennoyer,  14  III.  158;  435:  Compare  Weaver  v.  Carpenter, 
Bennett  v.  Davis,  6  Cow.  (N.  Y.)  42  Iowa,  343;  Armitage  v.  Widoe, 
393;  Knox  v.  Flack,  22  Pa.  St.  337;  36  Mich.   124. 

Lawrence  v.  McArter,  10  Ohio,  38;  6.  MacGreal  v.  Taylor,  167  U.  S. 

Pyle  V.  Cravens,  4  Litt.    (Ky.)    17;  688,  17  S.  Ct.  961.     See,  also,  Mor- 

Tucker    v.   Morehead,    10    Pet.     (U.  ton  v.  Steward,  5  111.  App.  533,  as 

S.)    58.  to  the  infanfs  rights,  when  note  is 

3.  Cole  V.  Pennoyer,  14  III.   158.  in  the  hands  of  an  innocent  holder 


for  value. 


51 


§§    28,  29  PREEDOM    OF    CONTRACT.  Ch.    3 

contract  is  voidable  only,  unless  it  appears  upon  its  face  to  be  to 
his  prejudice,  in  which  case  it  may  be  void.  It  is  apparent 
that  the  reporter  made  a  mistake  in  his  head-notes.  If  the  case 
is  read  with  close  attention,  it  will  be  found  that  no  such  doo 
trine  was  announced  as  incident  to  principles  involved  in  the 
question  under  discussion.  The  justice,  in  his  argument,  called 
attention  to  some  old  cases  that  held  such  doctrine.  And  if  the 
language  can  be  construed  as  announcing  such  doctrine,  it  is 
certainly  dictum,  and,  of  course  was  not  relative  to  the  case 
Tinder  decision. 

§  29.  Em,ancipation  by  parents. — Minors  may  be  emanci- 
pated from  parental  control  by  mutual  consent.  In  common 
language,  an  infant  is  given  his  time  by  his  parents,  and  then 
whatever  he  earns  belongs  to  him,  and  not  to  his  father,  and  if 
his  father  is  dead,  his  mother  cannot  lay  any  valid  claim  to 
such  income  from  his  labor.  But  such  emancipation  does  not 
make  him  capable  of  contracting;  it  simply  places  him  outside 
of  his  parental  control,  and  he  can  avoid  his  contracts  the  same 
as  if  he  had  not  been  given  his  time.^  And  so  the  question  of  the 
emancipation  of  a  minor  at  the  time  he  executed  a  note,  is  irrele- 
vant to  the  issue  in  a  suit  on  the  note,  as  it  cannot  affect  hig 
liability  thereon.  He  can  avoid  such  note  notwithstanding  his 
emancipation.^  By  emancipation  the  infant  receives  his  wages, 
and  the  father  has  no  right  to  demand  them  either  from  the  em- 
ployer or  the  child.  Such  an  agreement  may  be  inferred  from 
circumstances.  The  emancipation  is  a  relinquishment  by  the 
father  of  the  right  to  the  child's  services,  and  an  authorization 
to  employers  of  the  infant  to  pay  him  his  wages  as  if  of  full 
age.  It  does  not  make  the  infant  liable  on  his  contracts  as  an 
adult.^ 

1.  Mason  v.  Wright,  13  Met.  3.  Mason  v.  Wright,  13  Met. 
(Mass.)    30G.  (Mass.)    306;    Tyler   v.   Gallop,   68 

2.  Tyler  v.  Gallop,  68  Mich.  185,  Mich.  185,  35  N.  W.  902,  13  Am.  St. 
35  N.  W.  902,  13  Am.  ISt.  Rep.  336.  Rep.  336;  Tayler  v.  Hill,  115  Cal. 
See,  also,  Generaux  v.  Sibley,  18  R.  143,  44  P.  336,  46  P.  922. 

I.  42,  25  A.  345. 

52 


Cb.   3  INFANTS.  §§  29,  30,  31 

Though  the  act  of  emancipation  is  not  legal,  jet  a  stranger 
cannot  set  up  its  illegality  to  defeat  a  minor's  right  to  sue.* 

The  marriage  of  an  infant  with  his  parent's  consent  emanci- 
pates him ;  still  if  the  infant's  marriage  be  legal,  even  in  de- 
fiance of  the  parent's  consent,  the  child  becomes  emancipated, 
and  the  parent's  right  and  control  must  yield  to  the  new  status 
of  the  child.' 

§  30.  Valid  contracts  —  Legal  obligations. —  An  infant  is 
under  legal  obligations  to  provide  for  the  support  of  his  wife  and 
children,  and  is  answerable  on  his  contracts  for  necessaries  fur- 
nished them.*^  And  so  if  an  infant's  contract  is  in  discharge  of 
an  obligation  which  he  is  by  law,  either  general  or  statutory, 
bound  to  perform,  it  is  valid.  A  contrary  rule  would  only  serve 
the  purpose  of  fraud  and  injustice.^  An  infant  may  assign  his 
property  in  compliance  with  the  statute,  and  such  assignment 
is  valid,  because  he  is  bound  by  all  actions  which,  by  law,  he  is 
obliged  to  do  f  thus,  he  must  pay  taxes  levied  on  his  land.^ 

§  31.  Marriage  by  infant. —  The  statute  designates  the  age 
of  consent  that  an  infant  may  marry.  All  marriage  agreements 
made  when  the  infant  has  arrived  at  the  age  of  consent  are 

4.  Munday  v.  Kaufman,  48  La.  Y.),  518,  47  Am.  Dec.  272;  Bav- 
Ann.  591,  19  So.  753.  ington  v.  Clarke,  2  Pen.  &  W.  (Pa.) 

5.  Aldrich  v.  Bennett,  63  N.  H.  115,  21  Am.  Dec.  432;  Stowers  v. 
415,    56    Am.    Kep.    529;    Common-  Hollis,  83  Ky.  544. 

wealth  V.  Graham,  157  Mass.  73,  31  8.  People    v.    Mnllin,    25    Wend. 

N.  E.  706,  16  L.  E.  A.  578  and  note,  (X.  Y.)  698;  United  States  v.  Bain- 

34  Am.  St.  Rep.  255;   Sherburne  v.  bridge,  1  Mason,  C.  C.  83;  Winslow 

Hartland,    37    Vt.    528;     Compare  v.  Anderson,  4  Mass.  37.     See,  also. 

White  V.   Henry,  24  Me.  531.  Elliott  v.  Horn,  10  Ala.  348,  44  Am. 

6.  Chapman  v.  Hughes,  61  Miss.  Dec.  488;  Alexander  v.  Wright,  20 
339;  Price  v.  Sanders,  60  Ind.  315;  Ohio  St.  97;  Nordholt  v.  Nordholt, 
Gilley  v.  Gilley,  79  Me.  292,  9  A.  87  Cal.  552,  26  P.  599,  22  Am.  St, 
623,  1  Am.  St.  Rep.  307 ;  Turner  v.  Rep.  268 ;  Prouty  v.  Edgar,  6  Iowa, 
Frisby,  1  Strange,  168;  Compare  353;  Trader  v.  Jarvis,  23  W.  Va. 
Kelly   V.   Davis,   49    N.    H.    176,   6  100. 

Am.  Rep.  486  and  note.  9.  Horstnieyer     v.     Conners,     56 

7.  People  V.  Moores,  4  Denio  (N.       ^lo.  App.  115. 


53 


§§    31,  32  FREEDOM    OF    CONTRACT.  Ch.    3 

valid  ;^  but  those  made  before  the  age  of  consent  are  voidable. 
And  the  better  rule  is  that  parties  marrying  before  the  age  of 
consent  may  disaffirm  the  contract  during  non-age  and  it  is  then 
void  in  toto}  In  some  of  the  States  a  marriage  contract  before 
age  of  consent  is  declared  void ;  this  is  the  law  of  Arkansas,  and 
Texas ;  and  after  judicial  decree  in  New  Mexico.  In  the  fol- 
lowing States  marriages  before  age  of  consent  are  declared  void- 
able, and  may  be  amended  on  petition  or  suit  from  the  date  of 
the  decree :  Arkansas,  California,  Indiana,  Minnesota,  Nevada, 
New  York,  Oregon,  Vermont,  West  Virginia,  and  Wisconsin; 
and  such  marriages  may  be  annulled  by  the  injured  party  in 
Idaho,  Iowa  and  Washington,  and  without  restrictions  in  Michi- 
gan. Marriage  before  age  of  consent  may  be  declared  void  when 
the  parties  separate  during  non-age,  and  do  not  cohabit  there- 
after in  the  following  States :  Arizona  Territory,  Massachusetts, 
Michigan,  North  Carolina,  and  Virginia. 

In  Vermont  the  age  of  legal  consent  is  the  period  of  disability 
determined  by  the  common  law.^  In  Wisconsin  a  marriage  of 
parties  incapable  of  consenting  is  voidable.^ 

§  32.  Infant  wife. —  A  married  woman  is  incapable  of  per- 
forming any  act  of  affirmance  in  any  other  manner  than  in  the 
mode  provided  by  statute  for  the  conveyance  of  real  estate.^ 
Hence,  she  cannot,  after  attaining  the  age  of  majority,  affirm 
her  deed  while  she  was  an  infant  feme  covert  by  an  instrument 
which  is  not  executed  in  conformity  to  the  statutes  regulating 
the  conveyance  of  land  by  married  women. '^ 

When  the  disabilities  of  infancy  and  coverture  concur  at  the 
time  of  the  execution  of  a  deed  or  mortgage,  then  the  right  to 
disaffirm  continues  until  both  disabilities  are  removed,  without 
regard  to  the  length  of  time  which  may  elapse  between  the  date 

1.  Frost  V.  Vauglit,  37  Mich.  65.  N.    W.    50;     Compare    Shafher    v. 

2.  Tyler  on  Inf.,  81.  State,  20  Ohio,  1. 

3.  Fisher  v.  Bernard,  65  Vt.  5.  Matherson  v.  Davis,  2  Cold. 
663,  27  A.  316.  (Tenn.)   443. 

4.  State  V.  Cone,  86  Wis.  498,  57  6.  Walton    v.    Gaines,    94    Tenn. 

420,  29  S.  W.  458. 

54 


Ch.   3  INFANTS.  §§  32,33,34 

of  the  instriiinont  aiul  the  freeing  the  grantor  from  these  dis- 
abilities." ]jiit  the  disability  of  coverture  does  not  preclude  a 
married  woman  from  affirming  a  covenant  entered  into  by  her 
while  single  and  an  infant.^ 

§  33.  Bastardy. —  An  infant  who  is  the  putative  father  of  an 
illegitimate  child,  may  make  a  valid  contract  to  support  such 
child  when  he  acknowledges  the  paternity  of  it.  Thus,  an  in- 
fant accused  by  the  mother  of  a  bastard  child  of  being  the  father 
of  such  child,  may  admit  his  liability  and  bind  himself  by  con- 
tract to  support  the  child.*'  The  statute  makes  no  distinction  be- 
tween adults  and  infants  as  to  the  liability  for  the  support  of 
illegitimate  children.  The  contract  of  a  minor  to  pay  for  the 
support  of  particular  illegitimate  children  is  binding  as  being 
for  necessities.  ^'^ 

§  34.  Notes  given  for  torts. —  Notes  given  in  settlement  of 
torts  by  the  infant  are  valid.  The  law  makes  infants  liable  for 
their  torts.  Hence,  when  an  infant  elects  to  settle  such  liability 
by  giving  his  note,  so  long  as  the  consideration  of  the  note  is 
open  to  inquiry,  he  may  be  held  liable  upon  the  note  to  the  same 
extent  that  he  would  be  for  an  action  brought  upon  the  cause  of 
action  w^iicli  formed  the  consideration  of  the  note.^  Such  con- 
tracts that  are  valid  are  none  the  less  so,  because  in  the  form  of 
a  note  or  bill.^ 

7.  Scott  V.  Buchanan,  11  Humph.  Parker,  13  Met.  (Mass.)  372,  46 
(Tenn.)  467;  Dodd  v.  Berthal,  4  Am.  Dec.  735;  Bordentown  v.  Wal- 
Heisk.  (Tenn.)  009;  Walton  v.  lace,  50  N.  J.  L.  13,  11  A.  267; 
Gaines,  94  Tenn.  420,  29  S.  W.  458.  People  v.  Moores,  4  Denio   (N.  Y.) 

8.  In  re  Hodson's  Settlement,  518,  47  Am.  Dec.  272;  Gavin  v.  Bur- 
(1894),    2    Ch.    421;     Williams    v.  ton,  8  Ind.  69. 

Knight    (1894),  2  Ch.  421;   Wilder  1.  Ray  v.  Tubbs,  50  Vt.  688,  28 

V.  Pigot,  22  Ch.  Div.  263;  Greenhill  Am.  Rep.  519. 

V.  Ins.  Co.,  3  Reports,  674.  2.  Bradley  v.  Pratt,  23  Vt.  378; 

9.  Stowers  v.  Hollis,  83  Ky.  544.  Stone  v.  Dennison,  13  Pick.  (Mass.) 

10.  Swift  V.  Bennett,  10  Cush.  1,  23  Am.  Rep.  654;  Earle  v.  Reed, 
(Mass.)  463;  Turner  v.  Frisby,  1  10  Met.  (Mass.)  387;  Coim  v.  Co- 
Strange,  168;  Chappie  v.  Cooper,  burn,  7  N.  H.  368,  26  Am.  Dec. 
13    ilees.    &    Wei.    252;    MeCall    v.  746;  Elwell  v.  Martin,  32  Vt.  217. 


See  35  Cent.  L.  Jour.,  203. 


55 


§§    35,  36,  37  FREEDOM    OF    CONTKACT.  Cll.    3 

§  35-  Recognizance. —  An  infant  is  capable  of  binding  him- 
self by  any  obligation  which  the  law  requires  or  authorizes  him 
to  contract.^  Hence,  a  recognizance  given  by  him  is  binding 
upon  him.^  So  his  recognizance  to  appear  in  court  is  binding 
upion  him  as  if  he  was  an  adult.^  He  is  not  only  bound  by  his 
recognizance  but  by  other  bonds  or  obligations  required  by  law.* 
Whenever  he  is  bound  by  law  to  do  an  act  or  to  bind  himself  by 
recognizance,  his  contract  is  valid  and  he  cannot  avoid  it.  When 
he  is  to  do  that  which  the  law  binds  him  to  do,  he  cannot  avoid 
his  contract  and  is  bound  as  if  of  age.  But  his  bond  which  the 
law  does  not  require  him  to  give  is  voidable.^ 

§  36.  Enlistment  in  the  army. —  The  statute  of  the  United 
States  provides  for  the  enlistment  of  soldiers,  and  the  age  desig- 
nated will  be  the  age  which  will  bind  an  enlisted  soldier.  The 
statute®  authorizes  the  enlistment  of  men  above  the  age  of  sixteen 
years,  and  provides  that  no  person  under  the  age  of  twenty-one 
years  shall  be  mustered  into  military  service  without  the  written 
consent  of  his  parents  or  guardians.  Under  this  statute,  a  con- 
tract of  enlistment  entered  into  by  a  minor,  over  sixteen  years 
of  age,  without  the  consent  or  knowledge  of  his  parents,  cannot 
be  avoided  by  the  minor  himself,  but  only  by  his  parents,  who 
may  claim  the  custody  of  the  minor  before  majority.'^ 

§  37.  Partition. —  Partition  proceedings  may  be  legal  though 
one  of  the  tenants  in  common  is  a  minor.  And  a  court  of  equity 
can  order  land  to  be  sold  for  partition  among  general  tenants  in 
common,  some  of  whom  are  minor  heirs.^     Infants  en  ventre  sa 

1.  People     V.     Moores,     4     Denio  6.  U.  S.  Eev.  Stat.,  sections  1116, 
(N.  Y.)  518,  47  Am.  Dec.  272.                1117. 

2.  Fagin  v.  Goggin,  12  R.  I.  398.  7.  In  re  Hearn,  32  Fed.  Rep.  141 ; 

3.  State      V.      Weatherwax,      12        In   re   Davison,   21   Fed.   Rep.   618; 
Kans.  463;   Dial  v.  Wood,  9  Baxt.        United    States    v.    Gibbon,    24    Fed. 

(Tenn.)  296.  Rep.  136;   In  re  Morrissey,  137  U. 

4.  Tyler  on  Inf.  &  Gov.   122.  S.  157,  11  S.  Ct.  57. 

5.  Karcher    v.    Green,    8    Houst.  8.  Cocks    v.    Simmons,    57    Miss. 
(Del.)    163.                                                   183;    Wilson   v.    Duncan,   44   Miss. 

642. 

56 


Ch.  3  INFANTS.  §§  37,  38 

mere  are  not  bound  bj  a  decree  of  partition  made  before  they 
were  born.^  So  infant  children  are  not  bound  by  an  allotment 
or  sale  in  partition  made  before  they  were  born.^"  The  doctrine 
is  well  settled  that  posthumous  children  inherit  in  the  same  man- 
ner as  if  they  had  been  born  in  the  lifetime  of  the  ancestor  and 
had  survived  him,  and  their  interest  cannot  be  divided  by  parti- 
tion when  they  were  not  parties  to  the  proceedings/^ 

And  when  the  guardian  and  ward  are  tenants  in  common,  the 
guardian  cannot  have  the  estate  partitioned,  unless  the  ward  is 
actually  represented  in  court  by  a  guardian  ad  litem}^  When 
voluntary  partition  is  made,  and  not  by  decree  of  court,  and 
some  of  the  parties  are  infants,  these  infants  after  reaching  ma- 
jority, may  affirm  the  partition  by  holding  exclusive  possession 
of  their  share  and  exercising  ownership  thereof,^" 

§  38.  Shopping  —  Purchase  of  goods. —  It  has  been  said  that 
an  infant's  contracts  when  shopping  cannot  be  avoided;  that 
mere  purchases  at  stores  in  the  way  of  shopping,  where  the  art- 
icles are  received  and  the  price  paid,  are  irrevocable ;  that  if  an 
infant  goes  iipon  the  street  of  a  city  shopping,  he  cannot  after- 
wards retrace  his  steps,  and  receive  back  the  money,  even  though 
he  tenders  the  goods  in  return,^  But  this  statement  is  not  sus- 
tained by  the  courts  or  text-writers.  It  is  the  iTuiversal  rule  that 
all  executory  contracts  which  are  voidable  on  the  ground  of 
infancy  may  be  avoided  during  infancy  by  the  infant  as  well  as 
afterwards  as  when  the  minor  promises  to  pay.  So  too  all  con- 
tracts respecting  property  which  are  executed  by  delivery  of 
some  article  on  payment  of  money,  may  be  rescinded  by  the 
minor  before  and  after  the  time  of  his  coming  of  age.  To  this 
general  rule  are  these  three  exceptions:  1,  Contracts  for  neces- 

9.  Pearson  v.  Carlton,  18  S.  Car.  11.  Gillespie  v.  Xabors,  59  Ala. 
47;  Gillespie  v.  Nabors,  59  Ala.  441,       441,   31  Am.  Rep.  20. 

31   Am.   Rep.   20;   Massie  v.   Hiatt,  12.  Roodhouse  v.  Roodhouse,  132 

82     Ky.  .314;     Detrick    v.    Myatt,  111.  362,  24  N.  E.  55. 
19  111.  146.  68  Am.  Dec.  584;  Scott  13.  Whittemore  v.  Cope.  11  Utah, 

V.  Porter,  2  Lea   (Tenn.)    224.  344,  40  P.  256. 

10.  Pearson  v.  Carlton,  18  S.  Car.  1.  Bishop  on  Cont.  921. 
47. 

57 


§§    38,  39  FREEDOM    OF    CONTRACT.  Ch.    3 

saries;  2,  contracts,  not  unequal,  to  effect  what  the  infant  is  com- 
pellable in  chancery  to  do,  as  making  partition,  releasing  a  mort- 
gage, and  the  like ;  3,  contracts  nnder  which  the  infant  has  so 
enjoyed  or  availed  himself  of  the  consideration,  that  the  parties 
cannot  be  restored  to  their  original  situation.^ 

Hence,  it  is  held  by  some  courts  where  the  infant  does  not 
enjoy  the  benefit  of  the  purchases,  he  can  recover  the  purchase- 
money  on  restoring  the  thing  purchased,  but  if  he  has  enjoyed 
the  benefit  of  the  purchase  and  had  the  use  of  it,  the  money  can- 
not be  recovered.^ 

§  39,  Contract  for  necessaries. — An  infant's  contract  fon 
necessaries  is  valid.  But  what  are  necessaries,  is  not  easily 
answered. 

The  social  standing  of  the  infant  and  his  environment  have 
something  to  do  with  the  kind  of  necessaries  suitable  to.  him. 
Necessaries  generally  refer  to  supplies  which  are  personal,  either 
for  the  body,  as  food,  clothing,  lodging,  or  those  necessaries  for 
the  proper  cultivation  of  the  mind,  as  suitable  instruction,  and 
the  purchase  of  text-books.* 

The  English  doctrine  is  applicable  in  some  respect  to  the 
American,  though  not  wholly,  on  account  of  caste  in  the  English 
society.  It  is  held  in  England  that  an  infant  may  bind  himsel:^ 
to  pay  for  necessary  meat,  drink,  apparel,  necessary  medicine, 
and  good  teaching,  whereby  he  may  profit  himself  afterwards.^ 
So  regimentals  furnished  to  an  infant  who  was  a  member  of  a 
volunteer  corps  are  necessaries.^      That  is  necessary  which  is 

2.  Reeve's  Dom.  Rel.  pp.  227,  Freeman  v.  Bridger,  4  Jones  L.  (N. 
254;  Chitty  on  Cont.  p.  222;  Leake  Car.)  1,  67  Am.  Dee.  258;  McCarty 
on  Cont.  553;  2  Kent's  Com.  240.  v.   Carter,  49   111.   53,  95  Am.   Dec. 

3.  Corpe  v.  Overton,  10  Bing.  572 ;  West  v.  Greggs.  1  Grant  (Pa.  j , 
252;  Riley  v.  MaUory,  33  Conn.  53;  Hassard  v.  Rowe,  11  Barb.  (N. 
201;  Medbury  v.  Watrous,  7  Hill  Y.)  22;  Putnam  v.  Ritchie,  6  Paige 
(N.  Y.)    110;   overruling  McCoy  v.  (N.  Y.)   390. 

Hoffman,  8  Cow.    (N.  Y.)    178,  184,  5.  Co.  Litt.  172a. 

18  Am.   Dec.  432  and  note.  6.  Coates  v.  Wilson,  5  Esp.   152. 

4.  Tupper    v.    Cadwell,    12    Met. 
(Mass.)     559,    46    Am.    Dec.    704; 

58 


Ch.   3  INFANTS.  §§  39,40 

bo)ia  fide  purchased  for  use  and  not  for  ornament,  and  which 
consorts  with  the  condition  and  rank  in  life  in  which  the  party 
moves."^ 

§  40.  Things  necessary — Definition. — Things  nesessary  are 
those  without  which  an  individual  cannot  reasonably  exist,  such 
as  food,  raiment,  lodging,  and  medicine ;  so  the  proper  cultiva- 
tion of  the  mind  is  a  necessary,  such  as  a  common  school  educa- 
tion, and  instruction  in  art  or  trade,  or  intellectual,  moral  ou 
religious  information.  The  assistance  and  attendance  of  serv- 
ants may  be  necessary.  The  infant's  clothes  may  be  fine  or 
coarse,  according  to  his  social  standing;  and  his  education  may 
vary  according  to  the  position  he  is  to  fill ;  the  medicine  will 
depend  on  his  illness;  and  a  servant  in  livery  may  be  allowed 
to  a  rich  infant,  if  such  attendance  is  commonly  appropriate  in 
his  social  condition.  But  articles  of  mere  luxury  are  always 
excluded,  though  luxurious  articles  of  utility  are  in  some  cases 
allowed.  But  contract  for  charitable  assistance  to  others  cannot 
be  allowed  to  be  binding,  because  they  do  not  relate  to  the  in- 
fant's own  personal  advantage.^ 

Necessaries  for  an  infant's  wife  are  necessaries  for  him.^ 
^Necessaries  for  a  livery  servant  of  an  officer  in  the  army  are 
necessaries.^  And  an  infant  widow  is  bound  by  her  contract 
for  the  furnishing  of  the  funeral  of  her  husband,  who  has  left 
no  property.^ 

The  meaning  of  the  term  "  necessaries  "  cannot  be  defined  by 
a  general  rule  applicable  to  all  cases.  The  question  is  a  mixed  one 
of  law  and  fact,  to  be  determined  in  each  case  from  the  pecu- 
liar facts  and  circumstances  of  such  case." 

7.  Peters  v.  Fleming,  6  Mees.  &  3.  Hand   v.    Slaney,    8   Term.   R. 

Wei.  42.  578. 

1.  Chappie  V.  Cooper,  13  Mees.  &  4.  Chappie  v.  Cooper,  13  IMees.  & 
Wei.     252.      See,     also,     Ryder     v.  W.  252. 

Wombwell,  L.  R.  3  Exch.  95;  Price  5.  Englebert  v.   Troxell,  40   Xeb. 

V.  Sanders,  (50  Ind.  310.  195,  58  N.  W.  852,  42  Am.  St.  Rep. 

2.  Turner  v.  Frisby,  1  Strange  05;  Cobbey  v.  Buchanan,  48  Neb. 
168.  391,  G7  X.  W.  176. 


59 


41 


FREEDOM    OF    CONTEACT. 


Ch.  3 


§  41.  Things  not  necessary. —  As  the  rule  stands  necessaries 
which  an  infant  may  be  compelled  to  pay  for,  if  he  has  agreed 
to,  are  supplies,  which  are  personal,  either  for  the  body,  as  food, 
clothing  or  lodging  or  those  necessaries  for  the  proper  cultivation 
of  the  mind,  as  suitable  instruction  and  the  purchase  of  text- 
books. Under  this  rule  a  dwelling  house  is  not  necessary  and 
an  infant  may  avoid  a  bond  and  mortgage  given  for  the  erection 
of  it,"^  A  bicycle  is  not  a  necessity  f  nor  an  unnecessary  supply 
of  clothing;^  nor  professional  education;*  nor  things  for  mere 
ornament;^  nor  tobacco,  prima  facie f  nor  is  a  horse,^  except 
when  an  infant  is  directed  to  use  one  by  his  physician,^  or  in 
order  to  take  a  trip  on  business  and  not  for  pleasure.^  The 
quality  and  quantity  of  the  things  furnished  must  be  taken  into 
consideration,  because  if  the  infant  has  a  sufficient  supply  they 
will  be  unnecessary,  and  if  they  are  not  suitable  they  are  equally 
unnecessary. -^^  Necessaries  do  not  "  include  horses,  saddles, 
bridles,  liquors,  pistols,  powder,  whips,  and  fiddles."  ^^  A  pair 
of  solitaires  and  a  goblet  are  not  necessaries  ;^^  nor  kid  gloves. 


1.  Allen  V.  Lardner,  78  Hun  (N. 
Y.),  603,  29  N.  Y.  S.  213. 

2.  Pyne  v.  Wood,  145  Mass.  558, 
14  N.  E.  775.  See,  also,  Merriam 
V.  Cunningham,  11  Cush.  (Mass.) 
40;  Leonard  v.  Stott,  108  Mass.  46. 

3.  Johnson  v.  Lines,  6  Watts  & 
S.   (Pa.)   80,  40  Am.  Dec.  542. 

4.  Turner  v.  Gaither,  83  N.  Car. 
357,  35  Am.  Rep.  574. 

5.  McKenna  v.  Merry,  61  111. 
179. 

6.  Bryant  v.  Richardson,  12  Jur. 
(N.  S.)   300  L.  R.  3  Exch.  93n. 

7.  Wharton  v.  Mackenzie,  5  Ad. 
&  El.  606;  House  v.  Alexander,  105 
Ind.  109,  4  N.  E.  891,  55  Am.  Rep. 
189;  Howard  v.  Simpkins,  70  6a. 
322;  Miller  v.  Smith,  26  Minn.  248, 
37  Am.  Rep.  407. 


8.  Hart  v.  Prater,  1  Jurist,  623; 
Harrison  v.  Fane,  1  Man.  &  G.  556. 

9.  Breed  v.  Judd,  1  Gray  (Mass.) 
455.  See,  also,  McKenna  v.  Merry, 
61  111.  177. 

10.  Nicholson  v.  Spencer,  11  Ga. 
610;  Nicholson  v.  Wilborn,  13  Ga. 
467;  Perrin  v.  Wilson,  10  Mo.  451; 
Davis  V.  Caldwell,  12  Cush.  (Mass.) 
512;  Johnson  v.  Lines,  6  Watts  & 
S.  (Pa.)  80,  40  Am.  Dec.  542; 
Horstman  v.  Connors,  56  Mo.  App. 
115. 

11.  Price  V.  Sanders,  60  Ind.  310. 
See,  also,  Harrison  v.  Fane,  1  Man. 
&  G.  556 ;  Glover  v.  Ott,  1  McCord 

(S.  Car.)   572. 

12.  Ryder  v.  Wombell,  L.  R. 
4  Exch.  32. 


'60 


Ch.  3  INFANTS.  §§  41,42,43 

cologne,  cravats,  and  fiddle  strings,^^  nor  buggy  ;^^   nor  stock  on 
a  farm.^^ 

§  42.  Repairs  on  real  estate. — "  Necessaries,"  within  the 
technical  meaning  of  the  word,  embraces  such  things  as  are 
necessary  for  the  support  or  comfort  of  the  minor  or  for  his 
personal  use,  taking  into  account  his  condition  and  circum- 
stances in  life.-^^ 

So  repairs  on  real  estate  are  clearly  not  within  this  definition, 
and,  hence,  an  infant  is  not  liable  for  such  repairs  either  on  his 
own  contract  or  on  the  contract  of  his  guardian  or  parent,  even 
though  the  repairs  are  necessary  to  prevent  immediate  and 
serious  injury  to  the  property.-^' 

§  43.  Things  necessary. —  Whatever  is  reasonably  needed 
for  the  infant's  support  is  necessary,  as  food  and  lodging;^  a 
nurse  in  sickness  f  attorney's  fees  in  a  necessary  suit  f  dentist's 
services  ;^  common  school  education  f  board  of  infant  while  at- 
tending school,®  and  an  infant  who  has  purchased  an  unneces- 
sary article  of  personal  property,  may  rescind  the  contract  and 
recover  the  money  paid.^     A  college  education,  under  certain 

13.  Lefils  V.  Sugg,   15  Ark.   137.  1.  Barnes    v,    Barnes,    50    Conn. 

14.  Howard  v.  Simpkins,  70  Ga.       572. 

322;  Rice  v.  Boyer,  108  Ind.  472,  9  2.  Werner's   Appeal,   91    Pa.    St. 

N".  E.  420,   58  Am.  Rep.   53.  222. 

15.  Decell  v.  Lewenthal,  57  3.  Crafts  v.  Carr  (R.  I.),  60  L. 
Miss.  331,  34  Am.  Rep.  449;  Com-  R.  A.  128;  Englebert  v.  Troxell,  40 
pare  Mahoney  v.  Evans,  51  Pa.  St.  Neb.  951,  58  N.  W.  852,  42  Am.  St. 
80.  Rep.    665;    Askey   v.    Williams,    74 

16.  Price  v.  Sanders,  GO  Iml.  310,  Tex.  294;  Epperson  v.  Nugent,  57 
314;  Cobbey  v.  Buchanan,  48  Neb.  Miss.  45,  34  Am.  Rep.  434;  Barker 
391,  67  N.  W.  176;  Englebert  v.  v.  Hibbard,  54  N.  H.  539,  20  Am. 
Troxell,  40  Neb.  195,  58  N.  W.  852,  Rep.  160;  Compare  Phelps  v.  Wor- 
42  Am.  St.  Rep.  665.  cester,  11  N.  H.  51. 

17.  Tupper  v.  Cadwell,  12  Met.  4.  Strong  v.  Foote,  42  Conn.  203. 
(Mass.)  559,  46  Am.  Dec.  704;  5.  Midleburg  College  v.  Chand- 
Phillips  V.   Lloyd,   18   R.   I.   99,   25       ler,  16  Vt.  686. 

A.   906.     See,  also,   West  v.   Gregg,  6.  Kilgore   v.   Rich,   83   Me.   305, 

1  Grant   (Pa.)   53;  Wallis  v.  Bard-        22  A.  176,  23  Am.  St.  Rep.  780. 
well,   126  Mass.   366.  7.  Shurtleff  v.  Millard,   12  R.  I. 

61 


§§  43,44 


FREEDOM    OF    CONTRACT. 


Ch.    3 


circumstances,  may  be  necessary,  as  when  an  infant  wishes  to 
become  a  professor.^  But  generally  a  professional  education  is 
not  necessary.^  But  in  determining  what  is  necessary  the 
infant's  station  in  life  must  be  considered.^" 


§  44.  In  business. —  The  law  does  not  throw  any  protection 
around  an  infant  in  business  not  applicable  when  out  of  busi- 
ness, and  does  not  encourage  persons  to  engage  in  business  dur- 
ing non-age.  The  policy  of  the  law  is  to  keep  infants  from  en- 
gaging in  business  until  they  have  reached  full  age,  and  so  art- 
icles purchased  for  business  purposes,  whether  that  of  farming 
or  commerce,  are  not  deemed  necessaries.  And  this  is  so  though 
the  infant  enters  business  in  order  to  support  himself.^  So  a 
horse  purchased  by  an  infant  who  is  engaged  in  farming  is  not 
a  necessary.^  And  a  bicycle  bought  to  ride  to  and  from  business 
is  not  a  necessary.^ 


272,  34  Am.  Rep.  640;  Robinson  v. 
Weeks,  56  Me.  102,  104;  Sparman 
V.  Keim,  83  N.  Y.  245;  Cooper  v. 
Allport,  10  Daly  (N.  Y.)  352;  Car- 
penter V.  Carpenter,  45  Ind.  142; 
Ayers  v.  Burns,  87  Ind.  245,  44  Am. 
Rep.  759;  House  v.  Alexander,  105 
Ind.  109,  4  N.  E.  891,  55  Am.  Rep. 
189;  Wharton  on  Cont.  47. 
Compare.  Parson  .on  Cont.  322, 
which  states  the  rule  incorrectly, 
with  no  authority  to  sustain  the 
statement. 

8.  Pickering  v.  Gunning,  W. 
Jones,  182;  Middlebury  College  v. 
Chandler,  16  Vt.  686. 

9.  Bouchell  v.  Clary,  3  Brev.  (S. 
Car.)  194;  Turner  v.  Gaither,  83 
N.  Car.  357. 

10.  McKenna    v.    Merry,    61    111. 
177;  Squier  v.  Hydliff,  9  Micfi.  274 
Jordan  v.  Coffield,  70  N.  Car.  110 
Breed  V.  Judd,  1  Gray  (Mass.)  455 
Wilhelm  v.  Hardman,   13  Md.   144 


Chappie  V.  Cooper,  13  Mees.  &  Wei. 
252. 

1.  Lowe  V.  Griffith,  1  Scott,  458; 
Latt  V.  Booth,  3  Car.  &  Kir.  292; 
Mason  v.  Wright,  13  Met.  (Mass.) 
306;  House  v.  Alexander,  105  Ind, 
109,  4  N.  E.  891,  55  Am.  Rep.  189; 
Merriam  v.  Cunningham,   11   Cush. 

(Mass.)  40;  Pyne  v.  Wood,  145 
Mass.  558,  14  N.  E.  775;  Paul  v. 
Smith,  41  Mo.  App.  275;  State  v. 
Howard,  88  N.  Car.  680;  Dilk  v. 
Keighley,  2  Esp.  480;  Wood  v. 
Losey,  50  Mich.  475 ;  Decell  v.  Lew- 
enthal,  57  Miss.   331,  34  Am.  Rep. 

449;     Grace    v.    Hale,    2    Humph. 

(Tenn.)  28;  Whittingham  v.  Hill, 
Cro.  Jac.  494;  Price  v.  Sanders,  60 
Ind.  310. 

2.  House  V.  Alexander,  105  Ind. 
109,  4  N.  E.  891,  55  Am.  Rep.  189. 

3.  Pyne  v.  Wood,  145  Mass.  558, 
14  N.  E.  775.  See,  also,  Ryan  v. 
Smith,  165  Mass.  303,  43  N.  E.  109. 


62 


Cll.    o  INFANTS.  §§    45,  46 

§  45.  When  an  infant  lives  at  home  with  his  father. —  An 
infant  wlion  residing  at  home  and  nnder  the  care  of  his  father 
and  supported  by  him,  is  not  liable  even  for  necessaries.  If  he 
Avere,  the  father  would  be  deprived  of  his  right  to  determine 
what  the  character  of  that  support  should  be  ;^  he  is  not  liable 
for  the  necessaries  furnished  him,  merely  because  his  father  is 
poor  and  unable  to  pay  for  them."  When  necessary  professional 
services  are  rendered  to  a  minor  residing  in  the  house  with  his 
father,  the  legal  inference  is  that  the  father  is  the  person  liable 
therefor.  The  poverty  of  the  father  is  not  sufficient  to  render  a 
minor  liable  for  necessaries  furnished  the  infant.  To  make  the 
father  liable  for  the  minor's  necessaries,  there  must  be  a  refusal 
of  the  father  to  furnish  them.^  Where  an  infant  has  been  de- 
serted by  the  father,  or  driven  away  from  home,  either  by  com- 
mand or  by  cruel  treatment,  then  the  infant  carries  with  him 
the  credit  and  authority  of  the  father  for  necessaries.  The  ob- 
ligation of  the  father  to  support  the  child  is  and  always  has 
been  recognized,  in  some  way  and  in  some  degree,  in  all  civil- 
ized countries. 

§  46.  Cardinal  tenets. —  The  true  rule  is  that  those  things, 
and  those  only,  are  properly  to  be  deemed  necessaries  which  per- 
tain to  the  becoming  and  suitable  maintenance,  support,  cloth- 
ing, health,  education,  and  appearance  of  the  infant  according 
to  his  condition  and  rank  in  life,  the  employment  or  pursuit  in 
which  he  is  engaged,  and  the  circumstances  under  which  he 
may  be  placed  as  to  profession  or  position. 

Under  this  doctrine  the  property  of  an  infant  is  not  subject 
to  a  mechanic's  lien  for  material  purchased  by  him  during  his 

1.  Angel    V,   McLellan,    16   Mass.  331,    34    Am.    Rep.    449;    Elrod    v. 

28,  8  Am.  xJec.  118;  Wailing  v.  Toll,  Myers,  2  Head    (Tenn.)    33;   Perrin 

9  Johns.    (N.   Y.)    141;    Bainbridge  v.  Wilson,  10  Mo.  451. 

V.  Pickering,  2  W.  Bl.  1325;  Trainer  2.  Hoyt  v.  Casey,  114  Mass.  397, 

V.  Trumbull,  141  Mass.  530,  6  N.  E.  19  Am.  Rep.  371. 

761;  Decell  v.  Lewenthal,  57  Miss.  3.  Hoyt  v.  Casey,  114  Mass.  397, 

399,  19  Am.  Rep.  371. 


63 


§§    46,  4Y  FREEDOM    OF    CONTRACT.  Ch.    3 

infancy/  though  the  repairs  on  the  house  were  necessary  to 
prevent  immediate  and  serious  injury  to  it.^  So  a  contract  for 
insurance  on  his  property  against  loss  or  damage  by  fire  is  not 
a  contract  for  necessaries  which  will  bind  an  infant.^  So  if  a 
party,  at  the  request  of  the  guardian,  pays  off  a  mortgage  on 
the  infant's  land,  he  cannot  recover  from  the  infant,  as  such 
payment  was  not  for  necessaries  ;*  nor  need  a  minor  pay  a  bond 
and  mortgage  given  to  secure  the  payment  for  the  erection  of  a 
house  on  his  land.^ 

§  47.  Support  of  family. —  By  the  common  law  a  father,  if 
of  sufficient  ability,  is  as  much  bound  to  support  and  provide 
for  his  infant  children,  in  sickness  and  in  health,  as  a  husband 
is  bonnd  by  the  same  law  to  support  and  provide  for  his  wife.® 
But  a  minor,  who  voluntarily  abandons  his  father's  house,  with- 
out any  fault  of  the  latter,  carries  with  him  no  credit  on  his 
father's  account  even  for  necessaries.'^ 

The  father  is  entitled  by  law  to  the  services  and  earnings  of 
his  minor  children.  This  right  is  founded  upon  the  obligation 
which  the  law  imposes  upon  him  to  nurture,  support  and  edu- 
cate them  during  infancy  and  early  youth,  and  it  continues 
until  their  maturity,  when  the  law  determines  that  they  are 
capable  of  providing  for  themselves.* 

1.  Bloomer  v.  Nolan,  36  Neb.  51,  Y.)  603;  Wornock  v.  Loar,  11  S.  W. 
53    N.    W.    1039,   38   Am.    St.   E,ep.       438,   11  Ky.  L.  R.  6. 

690.  6.  Reynolds  v.  Sweetser,  15  Gray 

2.  Phillips  V.  Lloyd,  18  R.  I.  99,  (Mass.)   80;  Hall  v.  Weir,  1  Allen 
25  A.   909;    Tupper  v.   Cadwell,   12  (Mass.)    261;    Camerlin  v.   Palmer 
Met.  (Mass.)  559,  46  Am.  Dec.  704;  Co.,  10  Allen  (Mass.)   539. 
Wallis  V.  Bardwell,  126  Mass.  366.  7.  Weeks  v.  Merrow,  40  Me.  151; 

3.  New  Hampshire  F.  Ins.  Co.  v.  Angel  v.  McLellan,  16  Mass.  27; 
Noyes,   32  N.   H.   345.  White  v.  Henry,  24  Me.  533;  Gilley 

4.  Bicknell  v.  Bieknell,  111  Mass.  v.  Gilley,  79  Me.  292,  1  Am.  St. 
265.  See,  also,  Phelps  v.  Worces-  Rep.  307;  Price  v.  Sanders,  60  Ind. 
ter,  11  N.  H.  51;  McCarty  v.  Car-  315;  Chapman  v.  Hughes,  61  Miss. 
ter,   49   HI.   53,   95   Am.   Dec.   572;  339. 

Putnam  v.  Ritchie,  6  Paige  (N.  Y.)  8.  Furman  v.  Van  Sise,  56  N.  Y. 

390;   Magee  v.  Welsh,   18  Cal.   155.       435,  439,  444,  446,  15  Am.  Rep.  441; 

5.  Allen  v.  Lordner,  78  Hun    (N.       Van    Valkenburgh    v.    Watson,     13 

64 


Ch.  3  INFANTS.  §§  47,48,49 

In  Vermont  and  New  Hampshire  it  is  held  that  a  parent  is 
under  no  legal  obligation,  independent  of  statutory  provision, 
to  maintain  his  minor  child,  and  that  in  the  absence  of  any  con- 
tract on  the  part  of  the  father,  he  cannot  be  held  except  under 
the  pauper  laws  of  those  States  which  provide  such  laws.*^  But 
this  is  against  the  great  weight  of  authority  and  is  not  supported 
by  the  rules  of  society  or  the  doctrine  of  publicists. 

§  48.  Payment  of  minor's  debts  by  another. —  If  an  infant 
procures  another  to  pay  a  bill  for  necessaries  for  him,  that  pay- 
ment is  regarded  as  furnishing  of  necessaries,  in  which  a  suit 
may  be  maintained  against  the  infant  for  the  reasonable  value, 
to  him  on  the  amount  so  paid,^  as  money  paid  for  an  infant  for 
necessaries  is  recoverable  from  him.^  And  where  a  person  lends 
m,oney  to  an  infant  to  pay  a  debt  incurred  for  necessaries,  and 
the  debt  is  so  actually  paid,  he  will  stand  in  equity  in  the  place 
of  the  original  creditor,  and  the  minor  will  be  liable  to  him.^ 
The  money  loaned  must  be  applied  to  the  payment  of  the  debt 
for  necessaries  in  order  to  make  the  infant  liable.* 

§  49.  Value  of  the  articles  sold. —  An  infant  may  bind  him- 
self to  pay  for  necessaries  he  obtains,  as  much  as  they  are  rea- 
sonably worth,  but  not  what  he  may  foolishly  have  agreed  to  pay 
for  them.^     If  he  has  made  an  express  promise  to  pay,  or  has 

Johns.    (N.    Y.)    480,    7    Am.    Dec.  Genereux  v.  Sibley,  18  R.  I.  43,  25 

395;  Garland  v.  Dover,  19  Me.  441;  A.  345. 

Benson  v.  Remington,  2  Mass.  113;  2.  Swift    v.    Bennett,     10    Gush. 

Dawes    v.    Howard,    4    Mass.    98;  (Mass.)    436;   Randall   v.   Sweet,   1 

Nightingale  V.  Withington,  15  Mahs.  Denio    (N.    Y.)    4G0;    Robinson    v. 

274,    18    Am.    Dee.    101;    State    v-  Weeks,  56  Me.  102 ;  Conn  v.  Coburn, 

Smith,  6  Me.  462,  464,  20  Am.  Dec.  7  N.  H.  368,  26  Am.  Dec.  746. 

324   and   note;    Dennis  v.   Clark,   2  3.  Harris  v.  Lee,  1  P.  Wm.  482; 

Cush.   (Mass.)   352,  353.  Darby    v.    Boocher,    1    Salk,    279; 

9.  Gordon  v.  Potter,  17  Vt.  34S;  Clark  v.  Leslie,  5  Esp.  28;  Price  v. 

Kelley  v.   Davis,   49   N.   H.    187,   6  Sanders,    60    Ind.    310;     Beeler    v. 

Am.  Rep.  499.  Young,   1   Bibb    (Ky.)    521. 

1.  Kilgore   v.   Rich,   83   Me.   305,  4.  Randall  v.  Sweet,  1  Denio   (iST. 

22   A.    176,   23   Am.    St.   Rep.   780;  Y.)   460. 

5.  Locke  V.  Smith,  41  X.  H.  346. 


§§    49,  50  FREEDOM    OF    CONTRACT.  Ch.    3 

given  a  note  in  payment  for  necessaries,  the  real  value  will  be 
inquired  into,  and  he  will  be  held  only  for  that  amount.*'  An 
infant  who  is  already  well  provided  for  in  respect  to  board, 
clothing,  and  other  articles  suitable  to  his  condition,  cannot  be 
held  responsible  if  any  one  supplies  other  board,  clothing,  and 
the  like,  although  such  person  did  not  know  that  the  infant  was 
already  supplied." 

The  question  whether  the  infant  made  an  express  promise  to 
pay  is  not  important.  He  may  be  held  on  a  promise  implied  by 
law,  from  the  necessity  of  his  situation,^ 

§  50.  Mixed  question  of  law  and  fact. —  What  are  neces- 
saries is  a  mixed  question  of  law  and  fact.  The  better  rule  is 
that  whether  the  articles  are  of  those  classes  for  which  an  in- 
fant shall  be  bound  to  pay,  is  a  matter  of  law  to  be  determined 
by  the  court ;  if  they  fall  under  those  general  descriptions,  then, 
whether  they  were  actually  necessary  and  suitable  to  the  con- 
dition and  estate  of  the  infant,  and  of  reasonable  prices,  must, 
regularly,  be  left  to  the  jury  as  a  matter  of  faet.^  It  must  also 
be  noted  that  the  articles  furnished,  to  come  within  the  class  of 
necessaries,  must  not  only  be  of  the  kind  which  are  suitable  to 
the  infant's  situation  in  life,  but  must  be  actually  needed  by 
him,  by  reason  of  his  failure  to  have  the  requisite  supplies.     If 

6.  Earle  V.  Reed,  10  Met.  (Mass.)  8.  (Gregory  v.  Lee,  64  Conn.  407, 
387;  Barnes  v.  Barnes,  50  Conn.  30  A.  53,  25  L.  R.  A.  618;  Hyman 
572;  Guthrie  v.  Morris,  22  Ark.  v.  Cain,  3  Jones  (N.  Car.),  Ill; 
411;  Bradley  v.  Pratt,  23  Vt.  378;  Eichardson  v.  Strong,  13  Ired.  (N. 
Askey  v.  Williams,  74  Tex.  294,  11  Car.)  106,  55  Am.  Dec.  430;  Ep- 
S.  W.  1101,  5  L.  R.  A.  576  and  note;  person  v.  Nugent,  57  Miss.  45,  47, 
Compare  Morton  v.  Stewart,  5  111.  34  Am.  Rep.  434;  Gay  v.  Ballou,  4 
App.  533:  Ayers  v.  Burns,  87  Ind.  Wend.  (N.  Y.)  403,  21  Am.  Dec. 
245,  44  Am.  Rep.  759;  Gregory  158;  Buckinhamshire  v.  Drury,  2 
V.  Lee,  64  Conn.  407,  30  A.  53,  25  Eden,  60,  72;  Clarke  v.  Leslie,  5 
L.  R.  A.  618.  Esp.  28. 

7.  Angel  v.  MeClellan,  16  Mass.  9.  Cobbey  v.  Buchanan,  48  Neb. 
28,  8  Am.  Dee.  118;  Swift  v.  Ben-  391,  67  N.  W.  176;  Englebert  v. 
nett,  10  Cush.  (Mass.)  436;  Barnes  Troxell,  40  Neb.  195,  58  N.  W.  852, 
V.  Toye,  13  Q.  B.  Div.  410;  Trainer  42  Am.  St.  Rep.  665;  Beeler  v. 
V.  Trumbull,  141  Mass.  527,  530,  6  Young,  1  Bibb.  (Ky.)  519;  Decell 
N.  E.  761.  V.  Lewenthal,  57  Miss.  331. 

66 


Ch.    3  INFANTS.  §§    50,  51 

the  infant  is  already  supplied  he  cannot  be  held  for  other  sup- 
plies. ^^  It  is  incumbent  on  the  party  furnishing  supplies  to 
satisfy  himself  by  due  inquiry  that  the  articles  furnished  the 
infant  are  actually  suitable  in  quantity  and  in  quality.^^  The 
jury  should  decide  whether  the  articles  are  suitable  to  the  estate 
and  condition  of  the  infant.^^ 


AETICLE  11. 

Ratification  of  Voidable  Contract. 

Section  51.  Necessity  of  Ratification. 

52.  How  Ratified. 

53.  What  is  a  Ratification. 

54.  Ratification   Upon   Condition. 

55.  Time  to  Ratify. 

5G.  Silence  as  a  Ratilieation. 

§  51.  Necessity  of  ratification. —  A  difference  exists  between 
an  executed  and  an  executory  contract.  In  the  former  case  the 
contract  is  binding  until  it  is  avoided.  In  the  latter  it  is  with- 
out binding  force  until  it  is  confirmed.  If  an  infant  is  sued  on 
his  executory  contract  before  or  after  becoming  of  age,  if  he  has 
not  affirmed  it  since  his  majority,  the  infancy  is  a  perfect  de- 
fense.^^  But  after  ratification  the  contract  is  binding  ah  ijiitio.^'^ 
Thereafter  the  contract  subsists  between  the  parties  and  is  valid 

10.  Deeell  v.  Lewenthal,  57  Miss.  Edgerly  v.  Shaw,  25  N.  H.  514,  57 
331,  34  Am.  Rep.  449;  Davis  v.  Am.  Dec.  349;  Petrow  v.  Wiseman, 
Caldwell,  12  Cush.  (Mass.)  513;  40  Ind.  148;  Hale  v.  Gerrish,  8  N, 
Nicholson   v.    Spencer,    11    Ga.   607.  H.    374;     Savage    v.    Lichlyter,    59 

11.  Hands  v.  Slaney,  8  Term  R.  Ark.  1,  26  S.  W.  12;  Carrell  v.  Pot- 
578;  Peters  v.  Fleming,  6  Mees.  &  ter,  23  Mich.  379;  Bush  v.  Linth- 
Wel.  42.  ieum,  59  Md.  344. 

12.  McKenna  v.  Merrj',  61  111.  14.  Ward  v.  Anderson,  111  N.  Car. 
177;  Jordan  v.  Coffield,  70  Ga.  110.  115,  15  S.  E.  333;   Kincaid  v.  Kin- 

13.  Neal  v.  Berry,  86  Me.  193,  29  caid,  85  Hun  (N.  Y.),  141,  32  N. 
A.  987;  Tobey  v.  Wood,  123  Mass.  Y.  S.  476;  Hall  v.  Jones,  21  Md. 
88,    25    Am.    Rep.    27    and    note;  439. 

67 


§§    51,  52  FREEDOM    OF    CONTRACT.  Ch.    3 

and  cannot  then  be  avoided  by  the  party  who  has  reached  the 
age  of  twenty-one  years. -^^ 

§  52.  How  ratified. —  The  cases  are  not  in  accord  as  to  what 
constitutes  a  ratification  of  a  voidable  contract.  Of  course  the 
contract  imposes  no  liability  on  him  until  ratified  after  full  age. 
Some  authorities  hold  that  such  a  ratification  must  have  all  the 
elements  of  a  new  contract  except  a  new  consideration.  The 
debt  is  regarded  as  standing  on  the  same  footing  as  a  debt  that 
has  been  destroyed  by  a  discharge  in  bankruptcy,  and  not  as 
one  barred  by  the  statute  of  limitations.^ 

But  the  better  rule  is  that  the  contracts  of  infants  are  only 
suspended  during  minority,  and  may  be  ratified  upon  the  same 
principle  and  for  the  same  reasons  as  a  debt  barred  by  the 
statute  of  limitations  may  be  revived.  Hence,  under  this  rule, 
a  new  promise,  clear  and  precise,  equivalent  to  a  new  contract, 
is  not  essential ;  but  any  words  or  acts  by  the  infant,  after  be- 
coming of  age,  that  clearly  recognize  the  existence  of  the  con- 
tract as  a  binding  obligation,  will  constitute  a  ratification.^  So 
an  express  promise  to  pay  is  not  the  only  method  of  ratification ; 
but  any  declaration  or  act  which  satisfies  the  court  that  the  lia- 
bility or  contract  duty  is  still  binding  and  intended  to  be  com- 
plied with,  if  voluntarily  done,  or  entered  into,  completely  neu- 
tralizes the  defense  of  infancy ;  and  it  is  not  necessary  to  a 
binding  ratification  that  the  party  sought  to  be  charged  knew, 
at  the  time  the  promise  was  made,  or  act  done,  that  he  had  the 
right  to  avoid  the  contract.  All  men  are  presumed  to  know  the 
law,  and  no  one  will  be  heard  to  plead  ignorance  of  it.^ 

15.  Hastings  v.  Dollarliide,24Cal.  2.  Henry  v.  Root,  33  N.  Y.  526; 

195;     Houlton     v.     Manteuflfel,     51  American  Mort.  Co.  v.  Wright,  101 

Minn.  185,  53  N.  W.  541;  Curry  v.  Ala.  658,  14  So.  399;  In  re  Hodson's 

Plow  Co.,  55  111.  App.  82.  Settlement    (1894),  2  Ch.  421. 

1.  Tibbets   v.   Gerrish,   25   N.   H.  3.  American  Mort.  Co.  v.  Wright, 

41,    57    Am.    Dec.    307;    Metson    v.  101  Aia.  658,  14  So.  399;  Morse  v. 

Roath,   12  Conn.   550;   Edmunds  v.  Wheeler,  4  Allen  (Mass.)  570;  Bes- 

Mister,    58    Miss.    765;    Turner    v.  tor  v.  Hickey    (N.  J.),  41  A.  555; 

Gaither,    83    N.    Car.    357,    35    Am.  Compare    Hatch    v.    Hatch,    60   Vt. 

Rep.  574.  160,  13  A.  791;  Kendrick  v.  Niesz, 

68 


Ch.  3  INFANTS.  §§  52,  53 

The  method  of  ratification  is  regulated  by  statute  in  some 
jurisdictions,  which  must  be  followed;  and,  however  ratified, 
the  ratification  once  made  cannot  be  repudiated.* 

It  has  been  held  bj  some  courts,  against  the  great  weight  of 
authority,  that  the  promise  of  the  adult  to  bind  himself  bj  a 
contract  made  in  infancy  must  not  only  be  voluntary  and  ex- 
plicit, but  must  be  made  with  knowledge  that  he  is  not  legally 
liable  unless  the  promise  is  made.  The  claim  for  the  necessity 
of  such  knowledge  first  appeared  in  a  dictum  of  a  nisi  prius 
court.^  This  unsound  doctrine  was  exposed  and  overthro^vn  by 
a  Massachusetts  decision,^  and  strange  to  say,  the  same  court 
affirmed  the  doctrine  of  the  erroneous  dictum,  in  a  brief  and 
hasty  opinion.'' 

The  promise  affects  only  the  liability,  and  has  no  effect  unless 
there  is  an  existing  contract.  When  that  is  established  through 
the  acts  of  the  infant,  the  liability  must  be  proved,  and  is 
limited  by  the  promise  of  the  adult.^  It  is  immaterial  whether 
the  promise  is  treated  as  a  waiver,  or  ratification,  or  a  new  con- 
tract, and  it  is  not  necessary  that  the  adult  knows  that  he  is  not 
legally  liable.  The  action  must  be  brought  on  the  original  con- 
tract. The  validity  of  the  adult's  promise  depends  on  his  ability 
to  affirm  his  infant  contract,  and  the  fact  that  he  does  not  know 
that  he  is  not  legally  liable  has  no  effect;  he  is  morally  liable, 
and  his  promise  makes  him  legally  liable  for  the  original  con- 
tract. 

§  53-  What  is  a  ratification. —  Where  an  infant  executes  a 
purchase-money  mortgage  to  secure  the  purchase-money  for  land 
conveyed  to  him  by  deed,  he  cannot,  after  he  comes  of  age,  affirm 
the  deed  and  at  the  same  time  disaffirm  the  mortgage  ;^  because 

17  Colo.   506,  30  P.  245;Dolph  v.  6.  Morse     v.     Wheeler,     4    Allen 

Hand,    156   Pa.   St.  91;    27   A.   114,  (Mass.)   570. 

36   Am.    St.    Rep.    25;    Edwards    v.  7.  Owen  v.  Long,  112  Mass.  403. 

Carter,  Appeal   Cases    (1893),   360.  S.  Edgerley   v.    Snaw,    25    N.   H. 

4.  Curry  v.  Plow  Co.,  55  111.  App.  514,   57   Am.   Dec.   349. 

82.  1.  Kendrick  v.  Baker,  159  Pa.  St. 

5.  Harmer  v.  Killing,  5  Esp.  102.        146,   27   A.    114.      See,   also,   Amer, 

69 


§§    53,  54:  FREEDOM    OF    CONTRACT.  Ch.    3 

the  deed  and  mortgage  is  one  transaction,  and  the  one  cannot  be 
ratified  or  avoided  without  producing  the  same  effect  on  the 
other.^  So  a  deed  of  trust  is  ratified  bj  acceptance,  by  the  party 
at  majority,  of  part  of  the  proceeds.^  A  prior  mortgage  may  be 
ratified  by  the  party  after  becoming  of  age,  by  a  recital  in  a 
subsequent  mortgage  that  the  latter  is  given  subject  to  the 
former/  Keeping  a  house  erected  on  an  infant's  land,  after  his 
coming  to  maturity,  is  not  a  ratification  for  materials  furnished 
to  erect  the  house.^  An  offer  by  an  infant  after  coming  of  age 
to  aflSrm  a  conveyance  by  him,  if  the  grantee  will  pay  balance  of 
purchase-money  which  is  refused,  is  no  ratification  f  and  if  he 
agrees  to  ratify  upon  a  condition,  the  condition  must  arise  be- 
fore he  will  be  bound.'  Eeceiving  part  of  the  purchase-money 
of  his  land,  after  becoming  of  age,  is  a  ratification  of  the  sale  f 
taking  up  an  old  deed  and  giving  a  new  one  in  affirmance  of  it, 
avoids  the  old  deed  ah  initio.^ 

§  54.  Ratification  upon  condition. —  A  contract  may  be  rati- 
fied or  qualified  upon  condition. ^^  So  in  an  action  on  such  a 
contract,  such  a  conditional  ratification  will  not  avoid  the  de- 
fense of  infancy  unless  there  is  proof  of  the  happening  of  the 
conditions  annexed  thereto.^^  As  an  adult  may  wholly  avoid  the 
contract  made  during  infancy,  he  may  avoid  it  in  part  or  may 
undertake  a  conditional  performance  of  it.^^    Thus,  a  note  given 

Free  L.  Co.  v.  Dykes,  111  Ala.  178,  6.  Craig  v.  Van  Bebber,  100  Mo. 

18  So.  292,  56  Am.  St.  Rep.  38.  584,  13  S.  W.  906,  18  Am.  St.  Rep. 

2.  Necker  v.  Koehn,  21  Neb.  559,       569  and  note. 

59  Am.  Rep.  849;   csKinner  v.  Max-  7.  Peacock   v.    Binder,   57    N.    J. 

well,  66  N.  Car.  45.  L.  374,  31  A.  215. 

3.  Darraugh  v.  Blackford,  84  Va.  8.  Smith  v.  Gray,  116  N.  Car. 
509,    5    S.    E.    542;     Treadway    v.  311,  21  S.  E.  196. . 

Veasey,  97  Ga.  329,  22  S.  E.  915.  9.  Cox  v.  McGowan,  116  N.  Car. 

4.  Wardv.  Anderson,  111  N.  Car.        131,  21  S.  E.  108. 

115,  15  S.  E.  933.  10.  Peacock  v.  Binder,  57  N.  J.  L. 

5.  Bloomer  v.  Nolan,  36  Neb.  51,       374,  31  A.  215. 

53   N.   W.    1039,    38   Am.    St.    Rep.  11.  Peacock  v.  Binder,  57  N.  J.  L. 

690.  See,  also,  AHen  v.  Lardner,  78       374,  31  A.  215. 

Hun   (N.  Y.),  603,  29  N.  Y.  S.  213.  12.  Thompson    v.    Lay,    4    Pick. 

(Mass.)     47;    Proctor    v.    Sears,    4 

YO 


Cb.   3  INFANTS.  §§  54,  55,  56 

in  infancy  may  be  ratified  upon  condition  by  tbe  adult  upon 
condition  of  his  financial  ability  to  pay  it  or  some  part  of  i{}^ 

§  55.  Time  to  ratify. —  It  is  provided  by  some  States  that  a 
ratification  shall  be  made  within  a  specified  time  by  the  party 
coming  of  age.  But  where  the  statute  does  not  control,  a  reason- 
able time  should  be  allowed  to  ratify  or  avoid,  and  if  not 
avoided,  the  contract  should  be  declared  valid.  Such  neglect  to 
ratify,  it  is  generally  held,  may  be  regarded  as  equivalent  to  an 
act  of  afiirmance,  and  as  amounting  in  fact  and  in  law  as  a  rati- 
fication.^* What  is  a  reasonable  time  will  depend  upon  circum 
stances  of  each  particular  case,  and  may  be,  either  for  the  court 
or  for  the  jury  to  determine. -^^ 

§  56.  Silence  as  a  ratification. —  Some  courts  hold  that  no 
passive  acquiescence,  though  long  continued,  will  ratify  a 
contract.^  A  ratification  may  be  inferred  by  acts  of  the  infant 
and  circumstances,  after  the  infant  has  attained  majority,  which 
are  inconsistent  with  an  intention  to  disaffirm ;  as  receiving  rent 
on  a  lease,  receiving  a  part  of  the  purchase-money,  or  conveying 
a  part  of  the  land  received  in  consideration  of  a  decd.^     The 

Allen    (Mass.)    95;   Eversen  v.  Car^  Goslin,  20   Neb.   347;    Thompson  v. 

penter,  17  Wend.   (N.  Y.)   419.  Strickland,  52  Miss.  574. 

13.  Peacock  v.  Binder,  57  N.  J.  L.  1.  Davis  v.  Dudley,  70  Me.  236, 
374,  31  A.  215.  35  Am.  Rep.  318;  Wallace  v.  Lath- 

14.  Dolph  V.  Hand,  156  Pa.  St.  am,  52  Miss.  291;  Eureka  v.  Ed- 
91,  27  A.  114,  36  Am.  St.  Rep.  25;  wards,  71  Ala.  248,  46  Am.  Rep. 
Wallace  v.  Lewis,  4  Harr.  (Del.)  314;  Hill  v.  Nelms,  86  Ala.  442,  5 
75;  Zoebisch  v.  Rauch,  133  Pa.  St.  So.  796;  Cresinger  v.  Welch,  15 
532,  19  A.  415;  Goodnow  v.  Empire  Ohio,  193;  Drake  v.  Ramsey,  5 
Lumber  Co.,  31  Minn.  468,  47  Am.  Ohio,  251;  Ferguson  v.  Bell,  17  Mo. 
Rep.  798;  Scott  v.  Buchanan,  11  347;  Bostwick  v.  Atkins,  3  N.  Y. 
Humph.  (Tenn.)  468;  Houlton  v.  53;  Irvine  v.  Irvine,  9  Wall.  (U. 
Manteuffel,  51  Minn.  185,  53  N.  W.  S.)  617;  Huth  v.  Carondelet,  etc., 
541;  Terrell  v.  Wentworth,  32  Fla.  Co.,  56  Mo.  202,  209. 

255,    13   So.   429,   37   Am.   St.   Rep.  2.  Thomas  v.  Pullis,  56  Mo.  219; 

94.  Sims  v.  Everhardt,   102  U.  S.  312; 

15.  Bingham  v.  Barley.  55  Tex.  Gillespie  v.  Bailey,  12  W.  Va.  70, 
281,  40  Am.   Rep.   801;    O'Brien  v.  29   Am.   Rep.   445;    Lacy  v.   Pixler, 


71 


§§    56,  57  FREEDOM    OF    CONTRACT.  Ch.    3 

better  rule  is,  especially  where  the  rights  of  third  parties  have  in- 
tervened, an  unreasonable  delay  to  avoid  the  contract  on  coming 
of  age,  should  be  considered  an  affirmation  of  the  contract.^ 


AETICLE  III. 

Disaffirmance  of  Voidable  Contracts. 

Section  57.  Avoidance. 

58.  May  Disaffirm  Contracts  Pertaining  to  Personalty  Before  Ma- 

jority. 

59.  What  is  a  Reasonable  Time  to  Disaffirm. 

60.  In  Case  of  Partnership  Contracts. 

61.  Rights  of  Third  Persons. 

62.  Contracts  for  Service. 

63.  Contracts  Beneficial  to  Infants. 

64.  Return  of  Consideration. 

65.  How  Affirmed  or  Disaffirmed. 

66.  Who  May  Avoid. 

§  57.  Avoidance. —  All  contracts  of  an  infant,  except  those 
for  necessaries  and  those  binding  on  him  by  law,  are  voidable 
by  him  at  his  election,  made  within  a  reasonable  time  after  be- 
coming of  age.^  Deeds  made  by  a  minor  are  not  void,  but  only 
voidable.  Their  validity  does  not  depend  upon  a  ratification 
after  the  minor  attains  majority,  but  to  avoid  them  he  must 
by  some  act,  clear  and  unmistakable  in  its  character,  disaffirm 
them.^  And  so  where  an  infant,  after  attaining  majority,  ex- 
pressly revokes  and  disaffirms  a  deed  made  by  him  during 
minority,  it  may  be  disregarded,  and  the  rights  of  the  parties 

120  Mo.  383,  25  S.  W.  206;   Dono-  1.  Gregory  v.  Lee,  64  Conn.  407, 

van  v.  Ward,  100  Mich.  601,  59  N.  30  A.  53;   Englebert  v.  Troxell,  40 

W.  254;   Tyler  v.  Gallop,  68  Mich.  Neb.  195,  58  N.  W.  852,  42  Am.  St. 

187,  35  N.  W.  902.  Rep.  665. 

3.  Langdon  v.  Clayson,  75  Mich.  2.  Tunison   v.   Chamblin,    88    111. 

20-x,  42  N.  W.  805;  Lacy  v.  Pixler,  378;   Irvine  v.  Irvine,  9  Wall.    (U. 

120  Mo.  383,  25  S.  W.  206;  Dolph  S.)617;  Dixon  v.  Merritt,  21  Minn. 

V.  Hand,  156  Pa.  St.  91,  27  A.  114,  196. 
36  Am.  St.  Rep.  25. 

T2 


Cll.     3  INFANTS.  §    57 

will  be  determined  the  same  as  if  the  deed  had  never  been 
made.^ 

The  right  to  disaffirm  a  contract  of  personal  liability  is  ab- 
solute, and  does  not  depend  upon  any  other  consideration  than 
the  obligations  of  that  contract/  and  relates  back  to  the  time  of 
contract ;''  such  disaffirmance  is  final  and  the  contract  cannot  be 
affirmed  thereafter.^ 

And  where  an  infant  buys  of  another  infant,  and  avoids  the 
contract,  the  other  may  avoid  the  implied  contract  to  return  the 
purchase-money,  so  that  there  can  be  no  recovery  on  the  contract. 
Where,  at  the  time  one  infant  avoids  a  contract  of  purchase 
from  another  infant  and  the  latter  has  spent  the  purchase- 
money,  he,  also,  having  avoided  his  contract,  is  not  liable  for 
conversion.^  If  an  infant  gets  property  by  fraud,  a  different 
question  then  presents  itself.^  Thus,  where  an  infant  procures 
the  intoxication  of  a  man  and  then  tortiously  receives  possession 
of  the  man's  cow,  the  man  on  coming  to  his  senses  may  avoid  the 
contract  and  bring  trover  against  the  infant  where  he  has  sold 
the  cow  and  spent  the  money,  upon  the  ground  that  the  cow  had 
been  tortiously  taken  from  him  under  a  fraudulent  contract.* 

Formerly  it  was  held  that  an  infant,  after  the  sale  of  his  land, 
might  enter  and  take  the  rents  and  profits  until  his  majority, 
when  he  could  affirm  or  disaffirm  his  sale.^"  But  that  cannot  be 
the  law.  In  the  first  place  he  would  not  be  allowed  to  enter  the 
premises  in  possession  of  his  grantee,  and  therefore  could  not 

3.  Mette  v.  Feltgen,  148  111.  357,  ton  v.  Barry,  175  Mass.  513,  56  N. 
36  N.  E.  81.  E.  574,  49  L.  K.  A.  560,  78  Am.  St. 

4.  Leacox  v.  Griffith,  76  Iowa,  Rep.  510,  and  cases  cited;  Carr  v. 
89,  40  N.  W.  109.  Clough,  26  N.  H.  280,  59  Am.  Dec. 

5.  French  v.  McAndrew,  61  Miss.  345. 

187;  Rice  v.  Boyer,  108  Ind.  472,  9  8.  Walker     v.     Davis,     1     Gray 

N.  E.  420,  58  Am.  Rep.. 53.  (Mass.)   506. 

6.  McCarty  v.  Woodstock  Iron  9.  Thurston  v.  Blanchard,  23 
Co.,  92  Ala.  463,  8  So.  417;  Ihley  Pick.  (Mass.)  18,  33  Am.  Dec.  700. 
V.  Padgett,  27  S.  Car.  300,  3  S.  E.  10.  Cummings  v.  Powell,  8  Tex. 
468.  80;   Harrod  v.  Myers,  21  Ark.  592, 

7.  Drude    v.    Curtis,    183    Mass.  76  Am.  Dec.  409. 
317,  67  N.  E.  317.     See,  also,  Slay- 

Y3 


§§    57,  58  FREEDOM    OF    CONTRACT.  Ch.    3 

take  the  rents  and  profits.  He  mnst  wait  until  he  is  of  age.^^ 
The  deed  of  an  infant  is  by  no  means  inoperative,  and  transmits 
title  with  all  of  its  incidents.^^ 

The  privilege  of  infancy  is  not  always  personal  to  the  infant ; 
and  contracts,  grants  or  deeds  by  a  matter  in  writing,  and  which 
take  effect  by  the  delivery  of  his  hands,  are  voidable  not  only  by 
himself  during  his  life  time,  but  also  by  his  heirs,  or  those  who 
have  his  estate,  after  his  decease ;  and  his  heirs  may  exercise 
the  same  right  of  disaffirmance  within  the  same  time  that  the 
infant  himself  might  if  living. ^^ 

The  right  to  disaffirm  the  sale  on  coming  of  age,  is  not  lost  by 
the  sale  of  the  land  by  the  infant's  grantee  to  an  innocent  pur- 
chaser.^* 

An  infant  may  be  the  subject  of  a  petition  in  bankruptcy,  if 
the  debts  from  which  discharge  is  sought,  cannot  be  disaffirmed 
by  him  on  coming  of  age.^°  But  other  cases  hold  that  an  infant 
cannot  be  adjudged  a  bankrupt  in  either  voluntary  or  involun- 
tary proceedings  ;^^  but  in  these  cases  the  debts  from  w^hich  re- 
lease was  sought  could  be  disaffirmed,  and  it  was  intimated  that 
a  petition  for  discharge  would  be  granted  if  the  liability  had 
been  for  necessaries.  In  England  the  question  whether  debts 
for  necessaries  will  support  a  petition  in  bankruptcy  is  an  open 


§  58.  May  disaffirm  contracts  pertaining  to  personalty  be- 
fore majority. —  While  there  is  not  entire  harmony  in  the  de- 
cisions upon  the  question  w^hether  a  minor  can  avoid  all  his 

11.  Shipley  v.  Bunn,  125  Mo.  14.  Searcy  v.  Hunter,  81  Tex. 
445,  28  S.  W.  754.                                     644,  17  S.  W.  372,  26  Am.  St.  Rep. 

12.  Irvine  v.  Irvine,  9  Wall.   (U.       837. 

S.)    617;    Worcester    v.    Eaton,    13  15.  In   re   Penzansky,   8   Am.   B. 

Mass.  371.  R.  99. 

13.  Land  and  Loan  Co.  v.  Bon-  16.  In  re  Eidenmiller,  110  Fed. 
ner,  75  111.  315;  Breckenridge  v.  Rep.  594;  In  re  Dugend,  100  Fed. 
Ormsby,  1  J.  J.  Marsh.    (Ky.)   248;  Rep.  274. 

Austin      V.       Seminary,      8      Met.  17.  In  re  Saltykoff,  1  Q.  B.  415. 

(Mass.)    203;    Compare   Jackson  v. 
Burchin,  14  Johns.    (N.  Y.)    137. 

74 


Ch.  3  INFANTS.  §§  58,  59 

executory  contracts,  before  lie  attains  majority,  he  may  avoid 
those  relating  to  personal  property  in  his  minority.^  Executed 
contracts  relating  to  land  cannot  be  avoided  until  the  infant 
comes  of  age.  He  may  take  possession  of  the  land  sold  by  him 
during  infancy  and  enjoy  the  profits,  and  then  upon  attaining 
his  majority  may  disaffirm  the  sale.^  But  this  is  not  the  rule 
in  all  States.  In  Missouri  a  deed  of  a  minor  passes  his  estate 
in  the  land  conveyed,  subject  only  to  be  defeated  by  a  dis- 
affirmance by  him.  During  infaaicy  he  cannot  disaffirm  his 
deed,  nor  can  he  enter  upon  the  land  sold  by  him  and  enjoy  its 
profit.^ 

§  59.  What  is  a  reasonable  time  to  disaffirm. —  Many  of  the 
States  have  answered  this  question  by  statutory  provisions. 
But  when  not  so  answered,  it  is  generally  held  that  the  time 
must  be  reasonable  in  respect  to  the  special  circumstances  of 
each  case.^  And  if  the  voidable  contract  is  not  rescinded  within 
a  reasonable  time  after  attaining  majority,  by  the  party  who  has 
come  of  age,  when  third  parties'  rights  intervene,  he  will  then 
be  barred  from  avoiding  it.^  But  there  are  a  few  courts  that 
hold  that  the  infant  on  coming  of  age  has  a  period  equal  to  that 

1.  Bool  V.  Mix,  17  Wend.  (N.  Mass.  508,  93  Am.  Dec.  117  and 
Y.)   119,  31  Am.  Dec.  285;  Stafford       note. 


V.  Roof,  9  Cow.  (N.  Y.)  626 
Chapin  v.  Shafer,  49  N.  Y.  407 
Sparman   v.   Keim,   83   N.   Y.    245 


3.  Shipley  v.  Biinn,  125  Mo. 
445,  28  S.  W.  754;  Craig  v.  Van 
Bebber,  100  Mo.  584,  13  S.  W.  906, 


Beardsley   v.   Hotchkiss,    96    N.   Y.  18    Am.    St.    Rep.    569    and    note; 

201;    Petrie    v.    Williams,    68    Hun  Harris  v.  Ross,  86  Mo.  89,  56  Am. 

(N.  Y.),  589,  23  N.  Y.  S.  237;  State  Rep.  411;  Peterson  v.  Laik,  24  Mo. 

V.   Plaisted,   43   N.  H.  413;   Adams  541,  69  Am.  Dec.  441. 

V.  Beall,  67  Md.  53,  8  A.  664,  1  Am.  4.  Amey  v.  Cockey,  73  Md.  297, 

St.  Rep.  379;   Towle  v.  Dresser,  73  20  A.   1071. 

Me.   252;    Rice  v.   Boyer,    108   Ind.  5.  Ward  v.  Laverty,  19  Neb.  429, 

472,  9  N.  E.  420,  58  Am.  Rep.  53;  27    N.    W.    393;     Thormachlen    v. 

Riley  v.  Mallory,  33  Conn.  207.  Kaeppel,    86    Wis.    378,    57    N.    W. 

2.  Baker  v.  Kennett,  54  Mo.  88;  298;    Dolph   v.   Hand,    156   Pa.    St. 

W^elch  V.  Bunce,  83  Ind.  382;  Shirk  91,  27  A.  174,  36  Am.  St.  Rep.  25; 

V.   Shultz,   113   Ind.   571,   15   N.   E.  Goodnow   v.    Empire   Lum.    Co..    31 

121;   Stafford  v.  Roof,  9  Cow.    (N.  Minn.  468,  18  N.  283,  47  Am.  Rep. 

Y.)    626;    Chandler  v.  Simmons,  97  798. 

75 


§§    59,  60  FBEEDOM    OF    CONTRACT.  Ch.    3 

of  the  statute  of  limitations,  in  which  to  avoid  his  contract,  and 
an  acquiescence  for  a  shorter  period  will  not  affirm  it.^ 

The  better  rule  is  that  what  is  a  reasonable  time  depends  upon 
the  circumstances  of  each  particular  case,  and  may  be  either  for 
the  court  or  for  the  jury  to  determine.'^  If  the  infant  upon  at- 
taining his  majority  desires  to  repudiate  his  contract  he  must 
do  so  within  a  reasonable  time;  and  he  must  be  treated  as 
knowing  the  contents  of  a  deed  whether  he  knew  them  or  not, 
and  if  his  repudiation  is  not  made  Avithin  a  reasonable  time,  he 
is  bound  by  the  deed.^ 

§  6o.  In  case  of  partnership  contracts. —  Where  an  infant 
enters  into  a  partnership  and  continues  until  he  attains  ma- 
jority, and  then  continues  in  the  partnership,  he  will  be  liable 
for  the  debts  of  the  firm.  But  he  will  not  be  liable  personally  for 
debts  not  affirmed,  when  they  were  made  in  his  infancy  as  a 
member  of  the  partnership.^  Where  money  is  paid  by  a  minor 
in  consideration  of  being  admitted  as  a  partner,  and  does  be- 
come and  remain  a  partner  for  a  given  time,  he  ought  not  to  be 
allowed  to  recover  back  the  money  thus  paid  unless  he  was  in- 
duced to  enter  into  the  partnership  by  fraudulent  representa- 
tions of  the  other  partners.^ 

An  infant  having  entered  into  a  partnership  cannot  repudiate 
his  contract  so  as  to  escape  the  consequences  of  partnership  which 
do  not  involve  personal  liability  for  claims  against  the  firm  or 
costs  incident  to  the  legal  settlement  of  its  affairs.  Such  partner- 
ship must  be  dissolved  as  any  other,  and  partnership  assets  must 
be  assignable  to  partnership  creditors.^  And  it  is  held  that  a  min- 

6.  Prouty  v.  Wiley,  28  Mich.  8.  Ewards  v.  Carter,  Appeal 
164;  Drake  v.  Ramsey,  5  Ohio,  251;        Cases   (1893),  360. 

Lacy  V.  Pixler,  120  Mo.  383,  25  S.  1.  Bush    v.    Linthicum,    59    Md. 

W.    206;    Richardson    v.    Pate,    93  345;  Tobey  v.  Wood,  123  Mass.  88, 

Ind.  432.  25  Am.  Rep.  27  and  note. 

7.  Goodnow  v.  Empire  Lum.  Co.,  2.  Adams  v.  Beall,  67  Md.  53.  8 
31  Minn.  468,  18  N.  W.  283,  47  Am.  A.  664,  1  Am.  St.  Rep.  379;  Ex 
Rep.  798 ;  O'Dell  v.  Rogers,  44  Wis.  parte  Taylor,  8  DeG.  Mac.  &  Gor. 
136;    Bingham    v.    Bailey,    55    Tex.  254. 

281,  40  Am.  Rep.  801.  3.  Armitage   v.   Widoe,   30  Mich. 

76 


Cli.  3 


INFANTS. 


60,61 


or  may  avoid  a  personal  liability  by  disaffirming  a  contract  made 
by  the  firm  of  which  he  was  a  member  without  disaffirming  the 
contract  of  partnership.*  But  an  infant  coming  of  age,  or  be- 
fore, may  disaffirm  the  partnership  agreement  and  also  the  debts 
of  the  firm  so  far  as  his  personal  liability  is  concerned.^  As  to 
the  creditors  of  the  firm,  his  only  immunity  is,  he  cannot  be  held 
personally  liable  for  the  firm  debts. ^  He  may  thus  throw  the 
liability  for  the  whole  debts  on  his  partners,  and  make  such 
partners  solely  responsible,  but  the  assets  of  the  firm  must  be 
devoted  to  the  satisfaction  of  the  contracts  by  which  they  have 
been  procured.  Having  placed  the  whole  liability  on  the  other 
partners,  and  having  extricated  himself  by  avoiding  his  con- 
tract, from  all  liability  personally,  it  would  be  unjust  to  allow 
him  to  share  in  the  assets  of  the  firm  as  against  the  partnership 
creditors.' 


§  6i.  Rights  of  third  persons —  Third  persons  are  also 
bound  by  the  avoidance  of  an  infant's  contract.  So  a  bona  fide 
purchaser  from  the  vendee  of  an  infant  does  not  take  title  against 
the  right  of  the  minor  at  majority  to  disaffirm.^  When  a  void- 
able contract  of  an  infant  is  disaffirmed  by  him  it  is  made  void 
ah  initio  by  relation  and  the  parties  remitted  to  the  same  situ- 
ation as  if  the  contract  had  not  been  made.  If  the  contract  is 
one  of  sale  by  the  infant  he  becomes  revested  with  his  title  to  the 
property  and  may  demand  and  recover  it,  not  only  of  his  vendee 
but  of  any  other  person  who  may  have  it  in  possession.     The 


r24;  Kitchen  v.  Lee,  11  Paige  (N. 
Y.)  107,  42  Am.  Dec.  101;  Moley  v. 
Brine,  120  Mass.  324;  Furlong  v. 
Bartlett,  21  Pick.  (Mass.)  401. 
See,  also.  Shirk  v.  Shultz,  113  Ind. 
571,  19  N.  E.  12. 

4.  Mehlhop  v.  Rae,  90  Iowa,  30, 
57  N.  W.  650;  Compare  Salinas  v. 
Bennett,  33  S.  Car.  285,  11  S.  E. 
968;  Miller  v.  Sims,  2  Hill  (S. 
Car.)  479. 

5.  Mason    v.    Wright,     13    Met. 


(Mass.)  306;  Folds  v.  Allardt,  35 
Minn.  488,  29  N.  W.  201;  Todd  v. 
Clapp,   118  Mass.  495. 

6.  Yates  v.  Lyon,  61  N.  Y.  344; 
Pelletier  v.  Couture,  148  Mass.  269, 
19  N.  E.  400,  1  L.  R.  A.  863  and 
note. 

7.  Pelletier  v.  Couture,  148  Mass. 
269,  19  N.  E.  400,  1  L.  R.  A.  863 
and  note. 

8.  Searcy  v.  Hunter,  81  Tex.  644, 
17  S.  W.  372,  26  Am.  St.  Rep.  837. 


YY 


§§    61,  62  FREEDOM    OF    CONTKACT,  Ch.    3 

riglit  of  an  infant  to  avoid  his  contract  is  an  absolute  and  para- 
mount rightj  superior  to  all  equities  of  other  persons,  and  may 
therefore  be  exercised  against  purchasers  from  his  vendee.'^  He 
who  deals  with  an  infant  deals  at  his  peril  and  subject  to  those 
rights  of  the  infant  to  disaffirm  and  avoid  the  contract.  This  is 
the  case  even  though  he  deal  in  ignorance  of  the  infancy  and  on 
the  fraudulent  representation  that  he  is  of  full  age.^" 

§  62.  Contracts  for  service. —  An  infant  can  avoid  his  con- 
tract for  service  and  recover  a  quantum  meruit  as  if  no  contract 
had  been  made.  So  where  an  infant  has  performed  labor  on  a 
special  contract,  which  he  afterwards  abandons,  he  may  recover 
for  his  services  as  if  no  such  contract  had  been  made.  This  is 
the  true  rule  of  law,  and  the  parties  are  left  to  their  legal  rights 
and  remedies  just  as  if  no  contract  had  ever  been  made.^  The 
express  contract  to  work  a  certain  time  does  not  control.^ 

However,  where  an  infant  seeks  to  avoid  his  contract  and  re- 
cover what  his  services  are  reasonably  worth,  the  employer  may 
set  off  against  the  value  of  the  infant's  services,  the  reasonable 
value  of  what  the  infant  has  received  on  account  of  such  ser- 
vices.^ Thus,  when  a  minor  repudiates  his  contract  to  work  for 
two  years,  after  working  five  months,  and  being  paid  by  the 
month,  he  can  recover  no  more  than  his  equitable  dues.     What 

9.  Jenkins  v.  Jenkins,  12  Iowa,  Burnes,  84  Iowa,  446,  50  N.  W.  41. 
195;  Leacox  v.  Grriffith,  76  Iowa,  2.  Whitmarsh  v.  Hall,  3  Denio 
89,  40  N.  W.  109;  Myers  v.  Sanders,  (N.  Y.),  375;  Robinson  v.  Weeks, 
7  Dana  (Ky.)  506,  521;  Hill  v.  An-  56  Me.  102;  Doreeher  v.  Continental 
derson,  5  Smedes  &  M.  (Miss.)  216;  Mills,  58  Me.  217,  4  Am.  Rep.  286; 
Downing  v.  Stone,  47  Mo.  App.  144 ;  Ray  v.  Haines,  52  111.  485 ;  Price  v. 
Miles  V.  Longerman,  24  Ind.  385.  Furnam,  27  Vt.   268,  65  Am.  Rep. 

10.  Stack  V.  Cavanaugh,  67  N.  H.        194. 

149,  30  A.  350;  Conroe  v.  Birdsall,  3.  Breed      v.      Judd,      1      Gray 

1  Johns.  Cas.  127,  1  Am.  Dec.  105;  (Mass.)    455;    Gaffney   v.    Hayden, 

Winkle  v.  Ketcham,  3  Caine's  Cas.  110   Mass.    137,   14   Am.   Rep.   580; 

323;  Mustard  v.  Wohlford,  15  Grat.  Hoxie  v.  Lincoln,  25  Vt.  206;  Squier 

(Va.)   340.  V.  HydliflF,   9   Mich.   274;    Spicer  v. 

1.  Thompson  v.  Marshall,  50  Mo.  Earl,    41    Mich.    191,   S2   Am.    Rep. 

App.  145;  Vent  v.  Osgood,  19  Pick.  152;   Hall  v.  Butterfield,   5D  N.  H. 

(Mass.)    572;    Vehne    v.    Pinkham,  354,  47  Am.  Rep.  209. 
60  Me.   142.     See,  also,  Harrison  v. 

78 


Ch.   3  ii^FANTS.  §§  62,  63 

lie  received  is  deducted  from  the  value  of  the  work  done.*  The 
employer  may  set  up  a  counter-claim  for  board  and  other  neces- 
saries furnished  even  to  the  extinction  of  the  infant's  claim  f 
but  the  employer  cannot  set  up  any  damages  for  breach  of  the 
contract.^  If  the  articles  furnished  are  not  necessaries,  then  the 
infant  may  repudiate  the  contract  and  recover  for  his  services, 
and  the  employer  cannot  set  off  the  amount  thus  paid  the  in- 
fant^ 

§  63,  Contracts  beneficial  to  infants. —  Where  the  personal 
contract  of  an  infant  is  fair  and  reasonable,  and  free  from  any 
fraud,  overreaching,  or  undue  influence  by  the  adult,  and  has 
been  partly  or  wholly  executed  on  both  sides,  so  that  the  infant 
has  enjoyed  the  benefit  of  it,  but  has  parted  with  what  he  has 
received,  or  the  benefits  received  are  of  such  a  nature  that  he 
cannot  restore  them,  he  cannot  recover  back  what  he  has  paid ; 
this  is  the  rule  held  by  the  English  and  many  American  de- 
cisions.^ In  Holmes  v.  Blagg,^  it  was  erroneously  held  that  the 
infant  could  never  recover  back  money  voluntarily  paid.  This 
was  obiter  of  the  chief  justice.  It  has  been  said  that  Corpe  v. 
Overton,^  has  overruled  this  case,  but  such  is  not  the  fact.  Corpe 
V.  Overton  held  that  the  infant  might  recover  back  what  he  had 
voluntarily  paid,  but  on  the  ground  that  the  contract  in  that 
case  remained  wholly  executory  on  the  part  of  the  other  party, 
and    hence  the  infant  had  never  enjoyed  its  benefits.     And  this 

4.  Hagerty  v.  Nashua  Lock  Co.,  1.  Holmes  v.  Blagg,  8  Taunt. 
62  N.  H.  576;  Ray  v.  Haines,  52  508;  Valentine  v.  Canali,  24  Q.  B. 
111.  485;  Spicer  v.  Earl,  41  Mich.  Div.  166;  Riley  v.  Mallor,  33  Conn. 
191;  Gaffney  v.  Hayden,  110  Mass.  206;  Adams  v.  Beall,  67  Md.  53;  8 
137.  A.  664,  1  Am.  St.  Rep.  379;   Breed 

5.  Hoxie  V.  Lincoln,  25  Vt.  206;  v.  Judd,  1  Gray  (Mass.)  455;  John- 
Roundy  v.  Thatcher,  49  .N.  H.  526;  son  v.  Ins.  Co.,  56  Minn.  365,  57  N. 
Meredith  v.  Crawford,  34  Ind.  399.  W.  934,  59  N.  W.  992,  26  L.  R.  A. 

6.  Doreeher  v.  Continental  Mills,  187,  45  Am.  St.  Rep.  473  and  note; 
58  Me.  217,  4  Am.  Rep.  286;  Whit-  Compare.   Chicago,     etc.,     Asso.     v. 
marsh    v.    Hall,    3    Den.     (N.    Y.)  Hunt,  127  111.  278,  20  N.  E.  55. 
375.  2.  8  Taunt.  508. 

7.  Morse  v.  Ely,   154  Mass.  458,  3.  10  Bing.  252. 
28  N.  E.  577,  26  Am.  St.  Rep.  263. 

Y9 


§    63  FKEEDOM    OF    CONTEACT.  Ch.    3 

doctrine  of  the  text  has  been  accepted  by  able  writers.^  This 
doctrine  does  not  apply  to  real  property  contracts.  But,  if 
the  contract  involved  the  element  of  actual  fraud  or  bad  faith, 
the  infant  may  recover  all  he  paid  or  parted  with ;  but  if  reason- 
able and  fair,  except  that  what  the  infant  paid  was  in  excess  of 
the  value  of  what  he  received,  he  may  recover  the  excess,^  and 
the  contract  must  be  one  which  is  deemed  beneficial  to  the  in- 
fant by  law. 

The  majority  of  the  American  decisions  have  modified  the 
rule  thus  given,  and  others  have  repudiated  it  in  toto.  They 
hold  that  although  the  contract  was  in  all  respects  fair  and  rea- 
sonable, and  the  infant  had  enjoyed  the  benefits  of  it,  yet  if  the 
infant  had  spent  the  money  received,  or  if  the  benefits  of  it  were 
of  such  a  nature  that  they  could  not  be  restored,  still  he  might 
recover  back  what  he  had  paid.  The  courts  seem  to  want  to  pro- 
tect the  infant  from  the  improvidence  incident  to  his  youth  and 
inexperience,®  But  the  late  decision  of  the  American  courts  are 
not  uniform,  and  no  definite  rule  can  be  stated.  Every  one  who 
assumes  to  contract  with  an  infant  should  be  held  to  the  utmost 
good  faith  and  fair  dealing.  The  disparity  between  the  infant 
and  the  adult  is  such  as  to  raise  a  presumption  against  the  fair- 
ness of  the  contract,  and  to  cast  upon  the  adult  party  the  burden 
of  proving  that  it  was  a  fair  and  reasonable  one,  and  free  from 
any  fraud,  undue  influence,  or  overreaching.^  So  an  infant  will 
be  bound  by  a  stipulation  in  his  fire  insurance  policy,  which  pro- 
vides that  no  suit  shall  be  brought  for  the  recovery  of  any  loss, 

4.  See  Chitty  on  Cont.,  p.  222;  6.  Bloomer  v.  Nolan,  36  Neb.  51, 
Leake  on  Cont.,  p.  553;  2  Kent's  53  N.  W.  1039,  38  Am.  St.  Rep.  690; 
Com.  240;  Reeve's  Dom.  Rel.  clis.  Reynolds  v.  McCurry,  100  111.  356, 
2  and  3 ;  Parsons  states  the  law  too  39  Am.  Dec.  39 ;  Hawes  v.  Railroad 
broad,  by  omitting  the  qualification  Co.,  64  Iowa,  315,  20  N.  W.  717; 
"  and  enjoys  the  benefit  of  it."  Englebert  v.  Troxell,  40  Neb.  195, 
Parsons  on  Cont.,  p.  322.  The  Illi-  58  N.  W.  852,  42  Am.  St.  Rep.  665. 
nois  decision  accords  with  Parsons'  7.  Johnson  v.  Ins.  Co.,  56  Minn, 
statement,  Chicago,  etc.  Asso.  v.  3C5,  57  N.  W.  934,  59  N.  W.  992,  26 
Hunt,  127  111.  278,  20  N.  E.  55.  L.  R.  A.  187,  45  Am.  St.  Rep.  473 

5.  Johnson  v.  Ins.  Co.,  56  Minn.  and  note;  Charles  v.  Hastedt,  51 
375,  57  N.  W.  934,  59  N.  W.  992,  26  N.  J.  Eq.  171,  26  A.  564. 

L.  R.  A.  187,  45  Am.  St.  Rep.  473 
and  note. 

80 


Ch.   3  INFANTS.  §§  63,  64 

unless  commenced  within  twelve  montlis  after  the  destruction 
by  fire  of  his  building.  Such  a  stipulation  is  entirely  fair  and 
equitable  and  will  hold  the  minor.^ 

§  64.  Return  of  consideration. —  The  authorities  agree  that 
if  the  infant  had  in  specie  what  he  received  under  the  contract, 
he  must  restore  it,  as  condition  of  recovering  what  he  parted 
with.  The  disagreement  in  the  authorities  is  in  cases  where  the 
infant  cannot  restore  the  benefits  he  has  received;  where  he  has 
expended  them,  or  they  are  of  such  a  character  that  they  cannot 
be  restored. 

The  weight  of  authority  is  that  when  the  infant's  contracts 
are  not  for  necessaries,  he  may  avoid  them  at  his  election,  and 
it  is  not  necessary  in  order  to  do  so  to  return  the  consideration 
received,  to  put  the  other  party  in  statu  quo,  whether  he  has  been 
benefited  or  not;^  that  if  the  infant  has  wasted  or  squandered 
the  consideration  or  property  during  infancy,  he  can  rej)udiate 
the  contract  without  making  a  tender,^  But  if  he  has  the  con- 
sideration in  possession  the  other  party  may  recover  it.^ 

8.  Mead.   v.     Phoenix     Ins.     Co.-"Brantly    v.    Wolf,    60    Miss.    420; 

(Kan.),  64  L.  R.  A.  79.  Englebert  v.  Troxell,  40  Neb.   195, 

1.  Fox  V.  Drewry,  62  Ark.  316,  58  N.  W.  842,  42  Am.  St.  Rep.  665; 
35  S.  W.  533;  Chandler  v.  Sim-  Bloomer  v.  Nolan,  36  Neb.  51,  53 
mons,  97  Mass,  508,  93  Am.  Dec.  N.  W.  103,  38  Am.  St.  Rep.  690; 
117  and  note;  Morse  v.  Ely,  154  Hawes  v.  Railroad  Co.,  64  Iowa, 
Mass.  459,  28  N.  E.  577,  26  Am.  St.  315,  20  N.  W.  71/  ;  Carpenter  v. 
Rep.  263;  Boody  v.  MeKenney,  23  Carpenter,  45  Ind.  142;  Beddinger 
Me.  517;  Price  v.  Furman,  27  Vt.  v.  Wheaton,  27  Grat.  (Va.)  857; 
268,  65  Am.  Dec.  194;  Dube  v.  Dawson  v.  Holmes,  30  Minn.  107, 
Beauding,  150  Mass.  448,  23  N.  E.  14  N.  W.  462;  Gillespie  v.  Bailey, 
222,  15  Am.  St.  Rep.  228;  Snell  v.  12  W.  Va.  7,  29  Am.  Rep.  445; 
Harris,  51  Ark.  294,  11  S.  W.  104.  Lacy  v.  Pixler,   120  Mo.  383,  25  S. 

2.  Green  v.  Green,  69  N.  Y.  553,  W.  206;  Shirk  v.  Shultz,  113  Ind. 
25  Am.  Rep.  233:  Chandler  v.  Sim-  571,  15  N.  E.  12;  Lemmon  v.  Bee- 
mons,  97  Mass.  508,  93  Am.  Dec.  man,  45  Ohio  St.  505,  15  N.  E.  476; 
117  and  note;  Reynolds  v.  McCurry,  Young  v.  Railroad  Co.,  42  W.  Va. 
100  111.  346;  Brandon  v.  Brown,  112,  24  S.  E.  615;  Brawner  v. 
106  III.  519;  Crary  v.  Van  Bebber,  Franklin,  4  Gill.  (Md.)  463;  Gib- 
100  Mo.  584,  13  S.  W.  106,  18  Am.  son  v.  Soper,  6  Gray  (Mass.)  282, 
St.  Rep.   569   and  note;    Harvey  v.  66  Am.  Dec.  414. 

Briggs,    68    Miss.    60,    8    So.    274;  3.  Badger   v.   Phinney,    15   Mass. 

81 


§    64  FREEDOM    OF    CONTEACT,  Ch.    3 

In  Texas  it  is  indispensable  to  the  disaffirmance  by  the  infant 
on  coming  of  age,  that  the  consideration  money  for  the  property 
should  be  returned ;  that  such  is  the  law  of  Spain  and  applied 
to  Texas  when  it  belonged  to  Mexico.* 

The  general  rule  is  that  the  restoration  of  the  consideration, 
even  when  he  has  it,  is  not  a  condition  precedent  to  his  right  to 
avoid  the  contract.  After  disaffirmance,  the  infant  is  regarded 
as  holding  the  consideration,  when  he  has  it,  in  trust  for  the 
other  party,  who  may  recover  it  in  any  appropriate  proceeding.^ 
And  when  the  money  is  borrowed  on  a  mortgage  upon  disaffirm- 
ance of  the  mortgage,  a  decree  of  sale  may  be  entered  upon  fore- 
closure and  the  proceeds  applied  as  follows : 

1.  Payment  to  the  mortgagee,  with  interest,  the  sums  paid  by 
the  mortgagee  in  discharge  of  the  prior  liens  and  the  taxes  upon 
the  property.  2.  Payment  to  the  mortgagor  or  infant  an 
amount  equal  to  the  value  of  the  premises  mortgaged  at  the  in- 
stitution of  the  suit  to  foreclose,  less  such  prior  liens  and  taxes, 
without  interest  on  that  amount,  and  without  taking  into  con- 
sideration the  value  of  the  improvements  placed  on  the  lands. 
3.  Payment  to  the  mortgagee  such  of  the  proceeds  of  sale  as  may 
remain,  not  exceeding  the  balance  due  on  the  loan,  with  interest. 

If  the  property  does  not  bring  enough  to  pay  the  debt  due  the 
mortgagee,  under  the  conditions  stated,  he  will  be  without  rem- 
edy for  the  deficiency.^ 

359,  8  Am.   Dec.   105;   MacGreal  v.  Moreland,  10  Pet.  (U.  S.)   58;  Mac- 
Taylor,  107  U.  S.  688,  17  S.  Ct.  961;  Greal  v.  Taylor,   167  U.  S.  688,  17 
Mustard    v.     Wohlford,     15     Grat.  8.  Ct.  961. 
(Va.)    329,   76   Am.   Rep.   209.  6.  MacGreal  v.  Taylor,  167  U.  S. 

4.  Cummings  v.  Powell,  8  Tex.  688,  17  S.  Ct.  961.  See,  also,  Lynd 
93;  Kilgore  v.  Jordan,  17  Tex.  35;  v.  McGregor,  13  Allen  (Mass.)  182, 
Stuart  V.  Baker,  17  Tex.  421;  Bing-  90  Am.  Dec.  188;  Delllnger  v.  Foltz, 
ham  V.  Barley,  55  Tex.  281,  40  Am.  93  Va.  729,  25  S.  E.  998;  Darraugh 
Rep.  801.  V.   Blackford,   84   Va.   509,   5   S.   E. 

5.  Association  v.  Herman,  33  542;  Wilson  v.  Branch,  77  Va.  65, 
Md.  128;  Cressinger  v.  Welch,  15  46  Am.  Rep.  709 ;  Mustard  v.  Wohl- 
Ohio,  156;  Badger  v.  Phinney,  ir>  ford,  15  Grat.  (Va.)  329,  76  Am 
Mass.  359,  45  Am.  Dec.  565 ;  Chand-  Dec.  209 ;  Bedinger  v.  Wharton,  27 
ler  V.   Simmons,   97   Mass.   508,   93  Grat.    (Va.)    857. 

Am.  Dec.  117  and  note;   Tucker  v. 

82 


Cll.    3  INFANTS.  §    65 

§  65.  How  affirmed  or  disaffirmed. —  The  general  rule  is 
that  such  contract  may  be  affirmed  by  unequivocally  recognizing 
its  continuing  existence  and  binding  force.  So  it  may  be 
avoided  by  some  distinct  and  positive  act,  leaving  no  room  for 
doubt  as  to  the  intention.  It  may  be  effected  by  notice  of  dis- 
affirmance by  suit,  plea,  or  entry  upon  the  land,  or  other  un- 
equivocal act  or  dissent,  or  of  confirmation  as  the  case  may  be. 
So  a  contract  of  purchase  of  land  may  be  disaffirmed  by  the 
infant  after  attaining  his  majority  by  acts  manifesting  distinct 
and  unequivocally  an  election  and  intention  to  disaffirm,  by  an 
act  of  distinct  and  positive  dissent  whatever  may  be  its  form  or 
expression.^  A  tender  is  only  material  and  essential  as  a  con- 
dition to  the  right  of  either  party  to  sue  and  recover  in  equity.^ 

It  is  at  the  election  of  the  infant,  after  attaining  majority, 
in  cases  of  real  contracts,  to  affirm  or  disaffirm  the  contract. 
Something  must  be  done  which  expresses  the  purpose  of  the 
grantor  to  abide  by  the  conveyance;  mere  acquiescence  or  pas- 
siveness  will  not  have  the  effect,  unless  the  vendee,  with  the 
knowledge  of  the  grantor,  is  making  expenditures  on  the  prop- 
erty as  he  would  not  make,  unless  absolute  owner.^ 

A  mortgage  made  during  infancy  may  be  affirmed  by  a  con- 
veyance after  majority  to  a  third  person  subject  to  the  mort- 
gage. But  such  a  deed  which  does  not  refer  to  the  mortgage  is 
rather  a  disaffirmance.*  Entry  will  avoid  the  deed;  but  entry 
is  not  necessary  in  most  of  the  States  to  avoid  the  deed.^  A 
voidable  deed  may  be  confirmed  by  a  recital  in  a  subsequent 
deed,  with  a  design  to  ratify.^  A  clause  in  a  will  directing  the 
payment  of  all  just  debts  does  not  impose  on  the  executor  lia- 
bility for  the  testator's  note  made  during  infancy.^ 

1.  Drake  v.  Ramsey,  5  Ohio,  251.       Boston     Bank    v.     Chamberlin,     15 

2.  Tunison    v.    Chamblin,    88    111.       Mass.  220. 

378;   Singer  Mach.  Co.  v.  Lamb,  81  5.  See.    Pingrey's      Real      Prop., 

Mo.     22;     McCarty    v.     Woodstock  1285. 

Iron  Co.,  92  Ala.  463,  8  So.  417.  6.  Phillips     v.     Green,     5     Mon. 

3.  Wheaton.  v.   .East,     5     Yerg.  (Ky.)   344. 

(Tenn.)    41,   62,   26  Am.   Dec.   251;  7.  Smith  v.  Mayo,  9  Mass.  62,  6 

Allen  V.  Poole,  54  Miss.  323.  Am.  Dec.  28.     See,  also,  Upshaw  v. 

4.  Allen  v.   Poole,  54  Miss.  323;       Gibson,  53  Miss.  341;  Compare  Mer- 

83 


§§    65,  66  FREEDOM    OF    CONTEACT.  Ch.    3 

A  new  promise,  positive  and  precise,  is  not  now  essential; 
but  a  ratification  of  what  was  done  during  minority,  is  sufficient 
to  make  the  contract  obligatory.  All  that  is  necessary  is  that 
the  infant,  after  attaining  his  majority,  shall  expressly  agree  to 
ratify  his  contract  by  words,  oral  or  in  writing,  or  by  acts  which, 
import  a  recognition  and  a  confirmation  of  his  promise.^ 

So  if  an  infant,  after  attaining  majority,  retains  the  property 
purchased  by  him  during  minority,  for  his  own  use,  or  sells 
or  otherwise  disposes  of  it,  such  detention,  use  or  disposition, 
which  can  be  conscientiously  done  only  on  the  assumption  that 
the  contract  of  sale  was  a  valid  one,  and  by  it  the  property  be- 
came his  own,  is  evidence  of  an  intention  to  afiirm  the  contract, 
from  which  a  ratification  may  be  inferred,  when  he  purchases 
land  and  goes  into  possession  and  continues  in  possession  after 
his  majority,  for  he  thereby  affirms  the  purchase  and  ratifies  the 
contract  of  sale.^  A  suit  to  enforce  a  contract  is  an  affirmance  of 
it.^°  If  he  brings  suit  for  the  purchase-money,  after  becoming 
of  age,  this  is  a  disaffirmance  of  his  contract/^  Executing  a 
warranty  deed  to  a  third  party  is  a  disaffirmance  of  his  deed." 

§  66.  Who  may  avoid. —  Infancy  is  a  personal  privilege,  and 
can  only  be  set  up  by  the  party  himself  and  not  by  the  other 
party  to  avoid  contracts  and  set  aside  titles  made  by  him,^ 

chants'   Fire    Ins.    Co.   v.    Grant,   2       So.  155;  Buchanan  v.  Hubbard,  119 
Edw.   (N.  Y.)   544.  Ind.    187,  21   N.   E.   538;    Callia  v. 

8.  Whitney  v.    Dutch,    14  Mass.       Day,  38  Wis.  643. 

460,  7  Am.  Dec.  229  and  note;  Hart-  10.  Ferguson    v.    Bell,     17    Mo. 

ley  V.  Wharton,  11  Adol.  &  El.  934;  347;   Morrill  v.  Aden,   19  Vt.  505; 

Harris  v.  Wall,  1  Exch.  122;  Good-  Compare    Kendrick     v.     Niesz,     17 

sell,   V.    Myers,    3    Wend.    (N.   Y.)  Colo.  506,  30  P.  245. 
479;    Delano   v.    Blake,    11    Wend.  11.  Stack   v.    Cavanaugh,   67   N. 

(N.  Y.)   85,  26  Am.  Dec.  617.  H.  149,  30  A.  350. 

9.  Henry  v.  Root,  33  N.  Y.  526;  12.  Scott  v.  Brown,  106  Ala^ 
Boyden  v.  Boyden,  9  Met.    (Mass.)  604,  17  So.  731. 

519;   Hubbard  v.  Cummings,  1  Me.  1.  Alsworth   v.   Cordtz,   31   Miss. 

11;    Boody    v.    McKenney,    23    Me.  32 ;  Hartness  v.  Thompson,  5  Johns. 

517;    Bobbins   v.    Eaton,    10   N.   H.  (N.  Y.)    100;  Baldwin  v.  Rosier,  48 

561;   Ellis  v.  Alford,  64  Miss.  8,  1  Fed.  Rep.  810. 

84 


Ch.  3 


INFANTS. 


66 


and  his  personal  representatives.^  An  infant's  contract  cannot 
be  avoided  hj  other  parties  in  collateral  proceedings.^  And  as 
the  privilege  is  for  the  benefit  of  the  infant,  it  passes  to  his 
heirs  or  personal  representatives.^  Privies  in  blood  may  take 
advantage  of  this  privilege,  but  it  does  not  pass  to  privies  of 
estate  merely  with  the  infant.^  A  lease  executed  by  an  infant 
cannot  be  avoided  by  the  lessee  by  setting  up  the  disability  of 
the  lessor.® 

An  individual  creditor  cannot  attach  property  conveyed  by  a 
debtor  while  a  minor,  the  conveyance  of  which  such  debtor 
might  have  disafiirmed,  and  thus  avail  himself  of  the  infant's 
privilege.^     Voidable  acts  by  an  infant,  or  matters  of  record 


2.  Patterson  v.  Liippincott,  47  N. 
J.  L.  457,  1  A.  516,  54  Am.  Rep. 
17S;  Towle  V.  Dresser,  73  Me,  252; 
Hastings  v.  Dollarhide,  24  Cal.  195; 
Davies  v.  Turton,  13  Wis.  185;  Put- 
nam V.  Hill,  32  Vt.  85;  Monaghan 
V.  Ins.  Co.,  53  Mich.  238,  18  N.  797 ; 
Parsons  v.  Hill,  8  Mo.  135;  Person 
V.  Chase,  37  Vt.  650;  Smith  v. 
Mayo,  9  Mass.  62,  6  Am.  Dec.  28; 
Breckenridge  v.  Ormsby,  1  J.  J. 
Marsh.  (Ky.)  236,  248,  19  Am.  Dec. 
71. 

3.  Winchester  v.  Thayer,  129 
Mass.  129;  Doane  v.  Covel,  56  Me. 
627;  Holmes  v.  Rice,  45  Mich.  142, 
7  N.  712;  Sparman  v.  Keim,  83  N. 
Y.  245;  Chapin  v.  Shafer,  49  N.  Y. 
407;  Walsh  v.  Powers,  43  N.  Y. 
23,  3  Am.  Rep.  654;  Henry  v.  Root, 
33  N.  Y.  526,  536,  443 ;  Emerson  v. 
Carpenter,  17  Wend.  (N.  Y.)  419; 
Taft  V.  Sergeant,  18  Barb.  (N.  Y.) 
320;  Berdsley  v.  Ho^chkiss,  96  N. 
Y.  201;  Harris  v.  Ross,  112  Ind. 
314,  13  N.  E.  873;  Hooper  v.  Payne, 
94  Ala.  223,  10  So.  431;  Dentler  v. 
O'Brien,  56  Ark.  49,19  S.  W.  Ill; 
Keane  v.  Boycott,  2  H.  Bl.  511. 


4.  Dinsmore  v.  Webber,  59  Me. 
103;  Persons  v.  Chase,  37  Vt.  650; 
Wilson  V.  Porter,  13  La.  Ann.  407; 
Nolte  V.  Libbert,  34  Ind.  163;  Par- 
sons V.  Hill,  8  Mo.  135 ;  Bozeman  v. 
Browning,  31  Ark.  364;  Veal  v. 
Fortson,  57  Tex.  482;  Harris  v. 
Ross,  86  Mo.  89,  60  Am.  Rep.  411; 
Sharp  V.  Robertson,  76  Ala.  343; 
Harvey  v.  Briggs,  68  Miss.  60,  8  So. 
.:;74,  10  L.  R.  A.  62;  Searcy  v.  Hun- 
ter, 81  Tex.  644,  17  S.  W.  372,  26 
Am.  St.  Rep.  837;  Illinois  L.  & 
Loan  Co.  v.  Bonner,  75  111.  315. 

5.  Harris  v.  Ross,  112  Ind.  314, 
13  N.  E.  873;  Shrock  v.  Cowl,  83 
Ind.  243;  Gillenwaters  v.  Campbell, 
142  Ind.  529,  41  N.  E.  1041;  Price 
V.  Jennings,  62  Ind.  Ill;  Singer 
Mach.  Co.  V.  Lamb,  81  Mo.  221; 
Compare  Beeler  v.  Bullett,  3  A.  K. 
Mars.  (Ky.)  280,  13  Am.  Dec.  161; 
Jackson  v.  Burehim,  14  Johns.  (N. 
Y.)  124;  Walton  v.  Gaines,  94 
Tenn.  420,  29  S.  W.  458. 

6.  Field  v.  Herriek,  101  111.  110. 

7.  Kingman  v.  Perkins,  105 
Mass.  Ill;  Kendall  v.  Lawrence, 
22  Pick.  (Mass.)  540;  McCarty  v. 
Murray,  3  Gray   (Mass.)   578. 


85 


§   06 


FREEDOM    OF    CONTRACT. 


Ch.  3 


done  or  sufFered  by  him,  can  be  avoided  by  none  but  himself  or 
his  privies  in  blood,  and  not  by  privies  in  estate ;  and  this  right 
of  avoidance  is  not  assignable.^  And  hence  an  assignee  in  insol- 
vency cannot  avoid  a  mjortgage  on  real  estate  given  bj  an  in- 
fant, and  not  ratified  or  disaffirmed  by  him  after  attaining  his 
majority.^ 

The  fact  that  the  infant  may  rescind  without  returning  the 
consideration  when  he  has  squandered  it,  and  has  received  no 
benefit  from  the  contract,  indicates  the  right  is  strictly  a  per- 
sonal privilege,  and  that,  as  the  rule  permitting  him  thus  to 
avoid  his  contract  is  established  solely  for  his  protection,  so  he 
alone  also  can  have  the  benefit  of  it,  and  this  privilege  will  not 
pass  to  his  assignee  in  insolvency. 

But  an  absolute  gift  of  articles  of  chattels  made  by  an  infant 
can  be  revoked  or  avoided  by  him  or  by  his  administrator,^" 
because  the  administrator  is  a  personal  representative  of  the 
deceased  infant.  But  a  person  of  full  age  contracting  with  an 
infant  is  bound  absolutely  although  the  infant  has  a  right  to 
avoid  the  contract. ^^  A  holder  of  an  infant's  note  must  demand 
payment  in  order  to  hold  the  endorser. -"^ 


8.  Austin  V.  Charlestown  Semi- 
nary, 8  Met.  (Mass.)  196,  203,  41 
Am.  Dec.  497;  Wettingliam's  Case, 

8  Co.  42b,  43a. 

9.  Mansfield  v.  Gordon,  144 
Mass.  168,  10  N.  E.  773. 

10.  Person  v.  Chase,  37  Vt.  647, 
88  Am.  Dec.  630 ;  Hussey  v.  Jewett, 

9  Mass.  100;  Jefford  v.  Ringgold,  6 
Ala.  544;  Parsons  v.  Hill,  8  Mo. 
135. 

11.  Holt  V.  Clarencieux,  Strange, 


937;  Field  v.  Herrick,  101  111.  110; 
Johnson  v.  Rockwell,  12  Ind.  76; 
Cannon  v.  Olsburg,  1  A.  K.  Marsh. 
(Ky.)  76,  10  Am.  Dec.  709;  Mon- 
aghan  v.  Ins.  Co.,  53  MicH.  238,  18 
N.  W.  797;  Bruce  v.  Warwick,  6 
Taunt.  118;  Thompson  v.  Hamilton, 
12  Pick.  (Mass.)  425,  23  Am.  Dec. 
619. 

12.  Wyman  v.  Adams,   12   Cush. 
(Mass.)   210. 


86 


Ch.    3  INFANTS.  §    67 

ARTICLE  IV. 

Estoppel  of  Infant  by  His  Deceit. 

Section  67.  Misrepresentation  as  to  Age. 

68.  Tort  Growing  Out  of  Contract  Relations. 

69.  Actions  Ex  Delicto 

70.  In  Equity. 

71.  Actions  to  Avoid  Contracts. 

§  67.  Misrepresentations  as  to  age. —  It  is  the  general  rule 
at  common  law  that  simple  misrepresentations  by  the  infant, 
whereby  the  impression  is  conveyed  that  he  is  of  age  will  not 
estop  him  from  avoiding  his  contract.^ 

But  if  a  tort  arises  from  a  breach  of  contract,  although  there 
may  have  been  false  representations  or  concealment  respecting 
the  subject-matter  of  it,  the  infant  cannot  be  charged  for  this 
breach  of  his  promise  or  contract  by  a  change  of  the  form  of  ac- 
tion. But  if  the  tort  is  subsequent  to  the  contract,  and  not  a 
mere  breach  of  it,  but  a  distinct,  willful,  and  positive  wrong  of 
itself,  then,  although  it  may  be  connected  with  a  contract,  the 
infant  is  liable.  So  an  infant  is  liable  for  deceit  in  falsely  rep- 
resenting himself  to  be  of  age,  and  thereby  inducing  a  party 

1.  Cobbey  v.   Buchanan,   48   Neb.  Ky.  500,   IS  S.  W.  102,  36  Am.  St. 

391,  67  N.  W.  176;  Alt  v.  Graff,  65  Rep.   606;    Nash   v.  Jewett,   61   Vt. 

Minn.  141,  68  N.  W.  9;  VVieland  v.  501,   18  A.   97,  4  L.  R.  A.  561   and 

Kobick,    110    III.    16,   51    Am.    Rep.  note;    15    Am.   St.   Rep.   931;    Mer- 

676;  Stack  v.  Cavanaugh,  67  N.  H.  riam     v.     Cunningham,     11     Cush. 

149,  30  A.  350;  Lockman  v.  Wood,  (Mass.)     40;    Gilson    v.    Spear,    38 

25    Cal.    147;    Conrad   v.    Lane,    26  Vt.  311,  88  Am.  Dec.  659;  Brown  v. 

Minn.   386,   4   N.   695;    Studwell   v.  McCune.  5  Sand.   (N.  Y.)   224,  228; 

fenapter,    54    N.    Y.    249;    Sims    v.  Curtin    v.    Patten,    11    Serg.    &    R. 

Everhardt,    102    U.    S.    300;    Whit-  (Pa.)   305;  Burdett  v.  Williams,  30 

comb  V.  Joslyn,  51   Vt.  79,  31  Am.  Fed.   Rep.    607;    Buney  v.   Russell, 

Rep.  678;   Barnes  v.  Toye,  13  Q.  B.  10  N.  H.  184,  34  Am.  Dec.  146;  Mc- 

Div.     410;     Johnson     v.     Lines,     6  Kaney  v.  Cooper,  81   Ga.  679,  8  S. 

Watts  &  S.    (Pa.)    80,  40  Am.  Dec.  E.  312;  Eaton  v.  Hin,  50  N.  H.  235, 

542;  Monumental  Asso.  v.  Herman,  9  Am.  Rep.  189;  Schnell  v.  Chicago, 

33   Md.    151 ;    Sewell   v.    Sewell,   92  38  111.  383,  87  Am.  Dec.  3C4. 

87 


§§    67,  68  FREEDOM    OF    CONTRACT.  Ch.    3 

to  sell  him  goods  on  credit,  and  afterwards  avoiding-  his  promise 
to  pay  by  pleading  infancy.^  So  an  infant  who  represents  him- 
self to  be  of  age  as  an  inducement  to  one  to  purchase  land,  will 
be  estopped  by  such  fraudulent  representation  from  having  a 
court  of  equity  cancel  his  deed.^  That  is,  the  representation 
made  by  the  infant  must  be  fraudulent  and  be  believed  and 
relied  on  and  acted  upon  by  the  other  party ;  then  the  infant  is 
estopped  from  avoiding  his  contract.* 

§  68.  Tort  growing  out  of  contract  relations. —  So  the  ma- 
jority of  the  decisions  holds  that  if  the  wrong  grows  out  of  con- 
tract relations,  and  the  real  injury  consists  in  the  non-perform- 
ance of  the  contract  into  which  the  party  wronged  has  entered 
with  an  infant,  the  law  will  not  permit  the  former  to  enforce 
the  contract  indirectly  by  counting  on  the  infant's  neglect  to 
perform  it,  or  omission  of  duty  under  it  as  a  tort.''  So,  as  held 
by  some  courts,  an  infant  is  not  liable  for  the  value  of  the 
property  obtained  by  means  of  misrepresentations.^ 

The  doctrine  that  an  infant  is  not  estopped  by  the  misrep- 
resentation that  he  is  of  age,  when  such  misrepresentations  are 
not  fraudulent  per  se,  is  based  upon  the  principle  that  one  under 
the  disability  of  infancy  has  no  power  to  remove  the  disability 
by  such  representation,  when  he  does  not  commit  a   fraud.^ 

2.  Fitts  V.  Hall,  9  N.  H.  441;  67  N.  W.  Rep.  176;  Pemberton 
Prescott  V.  Norris,  32  N.  H.  103.  Build.    L.    Asso.    v.   Adams,    53    N. 

3.  Ryan  v.  Growney,  I2S  Mo.  474,  J.  Eq.  258,  31  A.  280.  The  civil 
28  S.  W.  189;  Schmitheimer  v.  law  makes  the  minor  responsible 
Eiseman,  7  Bush.  (Ky. )  298;  Pat-  for  misrepresentations  as  to  liis 
terson  v.  Lawrence,  90  111.  174,  32  age.  Kilgore  v.  Jordan,  17  Tex. 
Am.  Rep.  22;  Adams  v.  Fite,  3  341;  Carpenter  v.  Pridgen,  40  Tex. 
Baxt.     (Tenn.)     69;     Carpenter    v.  32. 

Carpenter,  25  N.  J.  Eq.  194;  Fergu-  5.  Cooley    on    Torts,    106,     107; 

son  V.  Bobo,   54  Miss.   121;    Hayes  Addison  on  Cont.  1314. 

511;    Overton   v.   Banister,    3    Har.  6.  Howlett  v.   Haswell,   4   Camp. 

511;    Overton   v.   Banister,   3   Hose,  118;   Studwell  v.  Shapter,  54  N.  Y. 

503;  Campbell  v.  Ridgeley,  13  Vict.  249;  Vasse  v.  Smith,  6  Cranch   (U. 

Law  R.   (Austral.)   701.  S.),    226;    Green   v.    Greenbank,    2 

4.  Baker  v.  Stone,  136  Mass.  405;  Marsh.  485,  4  Eng.  Com.  L.  375. 
Cobbey  v.  Buchanan,  48  Neb.  391,  7.    Carpenter    v.    Carpenter,    45 


Ch.    3  INFANTS.  §    68 

So  an  infant  is  not  liable  for  injury  to  propert}'  in  his  posses- 
sion under  contract  of  sale,  if  it  is  caused  solely  by  his  ignorance 
or  want  of  skill.^  I^or  is  an  infant  liable  for  negligence  in  the 
performance  of  a  contract  for  threshing  grain,  as  a  consequence 
of  which  there  was  a  fire  causing  much  loss.^ 

In  England,  misrepresentations  as  to  his  age  or  other  matters, 
by  which  he  obtains  a  contract,  are  insufficient  to  make  an 
infant  liable,  for  the  reason  that  this  w^ould  be  really  an  enforce- 
ment of  the  contract,  and  that  the  deception  is  a  part  of  the  con- 
tract. Massachusetts  and  Maryland  have  adopted  the  English 
rule.  But  the  great  weight  of  authority  in  the  United  States  is 
contrary,  and  the  infant  is  liable  for  such  contract,  and  is  es- 
topped to  set  up  his  infancy.  In  Iowa,  Kansas,  Utah,  and 
Washington,  the  infant  is  estopped  to  disaffirm  his  contracts 
where  on  account  of  misrepresentations  as  to  his  majority,  or 
from  his  having  engaged  in  business  as  an  adult,  and  the  other 
party  had  good  reasons  to  believe  him  capable  of  contracting. 

As  to  estoppel  of  an  infant  there  are  two  classes  of  cases: 
1.  Where,  in  an  action  on  a  contract  induced  by  the  fraudulent 
misrepresentations  that  he  was  of  age,  and  he  sets  up  infancy  as 
a  defence.  2.  Where  he  has  given  a  deed  of  property,  or  exe- 
cuted a  release  for  money  due  him,  and  then  seeks  to  recover  the 
property,  or  compel  a  second  payment,  upon  the  ground  that  he 
has  elected  to  disaffirm  his  deed  or  contract  of  sale,  or  release, 
upon  reaching  his  majority.  Under  the  first  class  the  weight  of 
authority  is,  he  is  not  estopped  to  avoid  his  contract,  because  es 
toppel  would  have  the  efi'ect  of  validating  the  contract,  against 
the  policy  of  the  law.  As  to  the  second  class,  the  weight  of 
authority  in  the  United  States  is  that  he  is  estopped. 

An  infant's  misrepresentations  as  to  the  property  which  he 

Ind.    142 ;    Sims  v.   Everhardt,    102  8.  Stack  v.  Cavanaugli,  67  N.  H. 

U.  S.  300;  Whitcomb  v.  Joslyn,  51  149,  30  A.  350. 

Vt.  79,  31  Am.  Rep.  678;   Wieland  9.  Loweiy  v.  Gate,  108  Tenn.  54, 

V.  Koblick,  100  111.   16;   Conrad  v.  64  S.  W.  1068,  57  L.  R.  A.  673  and 

Lane,  26  Minn.  389,  4  N.  695,  37  note    reviewing   the   American    and 

Am.  Rep.  412  and  note.  English    cases,    91     Am.    St.    Rep. 


744. 


89 


§§    68,  69  FREEDOM    OF    CONTRACT.  Ch.    3 

sells  are  regarded  as  part  of  the  contract,  for  which  he  cannot 
be  held  liable.  For  injuries  which  an  infant  does  to  property 
in  his  hands  as  bailee,  he  is  held  not  to  be  responsible,  if  the 
damages  are  occasioned  simply  by  negligence,  but  if  he  damages 
the  property  by  intentional  wrong,  he  is  held  in  most  of  the 
States  liable,  notwithstanding  any  stipulation  to  the  contrary. 
For  refusal  to  deliver  goods  which  he  has  in  his  possession,  he  is 
liable.  In  contracts  other  than  bailments  the  distinction  be- 
tween mere  negligence  and  deliberate  wrongs  is  applied. 

§  69.  Actions  ex  delicto. —  So  if  the  infant  fraudulently  and 
falsely  represents  that  he  is  of  full  age,  he  is  liable,  by  the 
weight  of  authority,  in  an  action  ex  delicto  for  the  injury  re- 
sulting from  his  tort.  This  result  does  not  involve  a  violation 
of  the  principle  that  an  infant  is  not  liable  where  the  conse- 
quences would  be  an  indirect  enforcement  of  the  contract,  for 
the  recovery  is  not  upon  the  contract,  as  that  is  treated  as  of  no 
effect ;  nor  is  he  made  to  pay  the  contract  price  of  the  goods  pur- 
chased by  him,  as  he  is  only  held  to  answer  for  the  actual  loss 
caused  by  fraud  ;  he  is  guilty  of  a  fraud  by  false  pretenses,  for 
which  he  is  to  answer  under  the  criminal  laws.^  This  doctrine 
concedes  the  power  of  the  infant  to  avoid  his  contract,  but  af- 
firms that  he  must  answer  for  his  positive  fraud. ^ 

Under  the  civil  law,  if  a  minor  represents  himself  to  be  of 
age,  and  from  his  person  he  appears  to  be  so,  he  will  be  bound 
by  any  contract  made  with  him,^  and  this  is  the  law,  by  statute, 
in  lowa,^  Kansas,^  Utah  and  Washington. 

Infants  are  liable  for  frauds  and  torts  to  the  same  extent  as 
adults,  and  where  actions  ex  delicto  are  brought  to  make  them 

1.  Neflf  V.  Landis,  liO  Pa.  St.  3.  Kilgore  v.  Jordan,  17  Tex. 
204,  1  A.  177,  56  Am.  Rep.  260.  341. 

2.  Rice  V.  Boyer,  108  Ind.  472,  4.  Iowa  Code,  2239;  Childs  v. 
9  N.  E.  420,  58  Am.  Rep.  53;  Wal-  Dobbins,  55  Iowa,  2D5,  7  N.  496; 
lace  V.  Morss,  5  Hill  (N.  Y.),391;  Jaques  v.  Sax,  39  Iowa,  367; 
Manning   v.   Johnson,   26   Ala.   446,  Prouty  v.  Edgar,  6  Iowa,  353. 

62  Am.  Dec.  732  and  note;   Badger  5.  Comp.  L.  ch.   67,  sec.  3;    Dil- 

V.  Phinney,  15  Mass.  359,  8  Am.  Ion  v.  Burnham,  43  Kans.  77,  22  P. 
Dec.  105.  1016. 

90 


Cll.     3  INFANTS.  §    69 

answerable  therefor,  they  cannot  escape  the  conseqviences  of 
their  acts,  by  reason  of  the  fact  that  the  tort  or  fraud  was  con- 
nected with  a  contract,  unless  it  constituted  the  consideration  of 
it.  Whenever  it  does  constitute  the  basis  of  the  contract,  as  in 
an  action  for  a  breach  of  a  fraudulent  warranty,  it  cannot  be 
changed  into  a  tort  in  order  to  charge  the  infant  in  trover  or 
case  by  a  change  in  the  form  of  the  action.^  But  where  goods 
are  obtained  by  a  minor  upon  the  false  affirmation  that  he  was 
of  age,  the  fraud  vitiates  the  contract,  and  no  title  will  rest  in 
the  infant,  and  he  may  be  treated  as  having  unlawfully  con- 
verted them,  and  may  be  sued  in  trover  or  replevin.^ 

In  some  of  the  cases  it  is  held  that  by  a  positive  and  willful 
tort  in  case  of  bailment,  the  bailment  is  determined  and  the 
remedy  must  be  by  action  of  trespass  or  trover,  and  that  case 
will  not  lie  f  because  the  action  on  the  case  necessarily  supposes 
the  defendant  or  infant  to  have  a  right  to  the  possession  of  the 
property,  under  the  contract  of  hiring  or  other  bailment,  at  the 
time  the  injury  was  committed,  and  by  declaring  in  case  the 
adult  affirms  the  existence  of  the  contract,  and  the  plea  of  in- 
fancy will  be  a  good  defense  to  such  action.^  This  doctrine  is 
assailable.  If  a  wrong  has  been  done  to  the  property  bailed  of 
such  nature  that  an  action  on  the  case  would  ordinarily  lie,  and 
at  the  same  time  an  infant  would  be  liable  for  it  in  any  form  of 
action,  no  reason  exists  for  holding  that  case  would  not  lie 
against  the  infant.  In  bringing  an  action  on  the  case  setting 
out  such  a  positive  and  willful  tort  as  is  wholly  inconsistent 
with  the  contract  of  bailment,  and  amounts  to  a  disaffirmance  of 
it,  it  may  fairly  be  inferred  that  the  plaintiff  elects  to  consider 

6.  In  re  King,   3  DeG.  &  J.  63;  492;    Oliver   v.   McClellan,   21    Ala. 

Ferguson    v.    Bobo,    54    Miss.    121;  675. 

Eice  V.  Boyer,  108  Ind.  472,  9  N.  E.  7.  Badger   v.   Phinney,    15   Mass. 

420,    58    Am.    Rep.    53.      See,   also,  359,    8    Am.    Dec.    105;     Story    on 

Humphrey  v.   Douglass,   10  Vt.   71,  Cont.  107,  111. 

33  Am.  Dec.  177  and  note ;  Lewis  v.  8.  Campbell   v.   Stakes,   2   Wend. 

Littlefield,  15  Me.  233;   Wallace  v.  (N.  Y.)    137,  19  Am.  Dec.  561. 

Morss,  5  Hill   (N.  Y.),  391;  Walker  9.  Jennings   v.   Rundall,   8   Term 

V.    Davis,     1    Gray     (Mass.)     506;  R.     335;     Green    v.    Greenbank,    2 

Hower  v.  Thwing,  3  Pick.    (Mass.)  Marsh.  485,  4  Eng.  C.  Law,  375. 

91 


§    69  PKEEDOM    OF    CONTRACT.  Ch.    3 

the  bailment  at  an  end,  and  this  applies  to  an  action  on  the  case 
for  a  tort  which  disaffirms  the  contract,  the  same  as  to  trespass 
or  trover ;  the  latter  is  indeed  but  a  subdivision  of  actions  upon 
the  case.  Therefore,  case  should  lie  against  an  infant  for  a 
positive  and  willful  tort  of  such  a  nature  that,  upon  general 
principle  of  pleading,  case  is  a  proper  remedy. ^° 

If  and  infant  receives  goods  on  a  contract,  and  disposes  of  the 
property  without  right,  he  is  liable  in  trover.^^ 

An  infant  bailee  of  a  horse  is  not  liable  for  treating  him 
negligently  or  riding  him  immoderately,  but  is  liable  if  he  goes 
to  a  different  place,  or  beats  the  animal  to  death  ;^^  or  if  he  has 
hired  a  horse,  and  willfuly  and  intentionally  injures  the  animal, 
trespass  will  lie  against  him,  or  if  he  does  any  willful  or  posi- 
tive act  which  amounts  to  a  disaffirmance  of  the  contract;  but 
if  he  neglects  to  use  him  with  ordinary  care,  or  to  return  him  at 
the  time  agreed  upon,  he  is  not  liable.^^ 

In  a  civil  suit  for  seduction  under  a  promise  of  marriage,  the 
infant  seducer  cannot  set  up  his  infancy  as  a  defense,  for  the 
seduction  is  a  tort  irrespective  of  the  promise. ^^  There  is  no 
enforcement  of  a  promise  where  an  infant  who  has  been  guilty 
of  a  positive  fraud  is  made  to  answer  for  the  actual  loss  his 
wrong  has  caused  to  one  who  has  dealt  with  him  in  good  faith 
and  has  exercised  due  diligence.  This  does  not  apply  to  execu- 
tory contracts  which  an  infant  refuses  to  perform,  for,  in  such 
case,  the  action  would  be  on  the  promise,  and  the  only  recovery 
that  could  be  had  would  be  for  the  breach  of  contract;  but  it 
will  apply  where  an  infant,  on  the  faith  of  his  false  and  fraudu- 
lent representations,  obtains  property  from  another  and  then 
repudiates  his  contract.  Any  other  rule  would  generally  suffer 
an  infant  of  discretion,  guilty  of  fraud,  to  escape  loss,  although 

10.  Eaton  v.  Hill,  50  N.  H.  235,  12.  2   Greenl.    on   Ev.   368. 

9  Am.  Rep.  189.  13.  Campbell  v.  Stakes,  2  Wend. 

11.  Vasse  V.  Smith,  6  Cranch  (N.  Y.)  137,  19  Am.  Dec.  561; 
(U.  S.)  231;  Campbell  v.  Stakes,  Towne  v.  Wiley,  23  Vt.  359,  56  Am. 
2  Wend.    (N.  Y.)    137,  19  Am.  Dec.  Dec.  85. 

561;  Mills  v.  Graham,  1  Bos.  &  P.  14.  Becker    v.    Mason,    93   Mich. 

N.  R.  140.  336,  33  N.  W.  361. 


92 


oil.    3  INFANTS.  §§    69,  YO 

his  fraud  had  enabled  him  to  secure  and  make  way  with  the 
property  of  one  who  had  trusted  in  good  faith  to  his  representa- 
tions, and  had  exercised  due  care  and  dilegence.^^ 

§  70.  In  equity. —  In,  law  it  is  conclusively  presumed  that  a 
person  within  the  age  of  twenty-one  years  is  unfitted  for  busi- 
ness, and  that  every  contract  into  which  he  enters  is  to  his  dis- 
advantage, and  that  he  is  incapable  of  fraudulent  acts  which 
will  estop  him  from  interposing  the  shield  of  infancy  against 
the  enforcement,^  but  he  is  certainly  liable  in  an  action  ex 
delicto  for  the  injury  resulting  from  his  tort,^  provided  the  in' 
fant  has  arrived  at  such  years  of  discretion  that  fraud  may 
fairly  be  imputed  to  him.^ 

In  equity  this  rigid  rule  of  non-estoppel  has  its  exceptions. 
Equity  regards  the  circumstances  surrounding  the  transaction, 
the  appearance  of  the  minor,  his  intelligence,  the  character  of 
his  representations,  the  advantage  he  has  gained  by  the  fraudu- 
lent representations,  and  the  disadvantage  to  which  the  person 
deceived  has  been  put  by  them,  in  determining  whether  the  in- 
fant should  be  permitted  to  invoke  successfully  the  plea  of  in- 
fancy.* Therefore,  whenever  an  infant,  who  has  arrived  at  the 
years  of  discretion,  by  direct  participation,  or  by  silence  when 
he  was  called  upon  to  speak,  has  entrapped  a  party,  ignorance 
of  his  title  or  of  his  minority,  into  purchasing  his  property  of 
another,  he  will  be  estopped  in  a  court  of  equity  from  setting  up 
such  title.  ^ 

In  the  code  States,  a  court  cannot  deny  substantial  justice 

15.  Badger  v.  Phinney,  15  Mass.  (Pa.)    305;   Jennings  v.  Rundell,  8 

359,   8   Am.   Dee.    105;    Mustard  v.  Term  R.  335. 

Wohlford,   15  Gratt.    (Va.)    329,  76  2.  Rice   v.    Boyer,    108   Ind.   472, 

Am.   Dec.   209;    Vasse  v.   Smith,   6  9   N.   E.   420,   58   Am.    Rep.    53;    2 

Cranch    (U.  S.),  226.'  Kent's  Com.  241;   Vasse  v.   Smith, 

1.  Johnson   v.    Pie,    1    Lev.    169;  6  Cranch    (U.  b.),  226. 

Price    V.     Hewett,     8     Exch.     146 ;  3.  Watts  v.  CresweH,  9  Vin.  Abr. 

Liverpool,   etc.   Asso.  v.   Fairhurst,  415,  3  Eq.  Cas.  Abr.  515. 

8   Exch.   422;    Gilson  v.    Spear,   38  4.  Hayes  v.  Parker,  41  N.  J.  Eq. 

Vt.  311,   88  Am.  Dec.  659;   Homer  630,  631,  7   A.   5ll. 

V.    Thwing,    3    Pick.     (Mass.)    492;  5.  Ferguson    v.    Bobo,    54    Miss. 

Curtin   v.    Patten,    11    Serg.    &    R.  121;    Curry    v.    Plow    Co.,    55    HL 

93 


§§    TO,  71  FREEDOM    OF    CONTKACT.  Ch.    3 

because  the  complaint  states  a  cause  of  action  in  a  peculiar 
form,  for  the  court  is  bound  to  render  such  a  judgment  as  yields 
justice  to  those  who  invoke  its  aid,  irrespective  of  mere  forms, 
in  all  cases  where  the  substantial  facts  are  stated,  and  are  such 
as  entitle  the  party  to  the  general  relief  sought.  It  will  not- 
inquire  whether  the  proceeding  which  asks  its  aid  is  at  law  or 
in  equity,  but  it  will  render  justice  to  those  who  ask  it  in  the 
method  prescribed  by  the  Code  of  Civil  Procedure. 

§  71.  Actions  to  avoid  contracts. —  In  law,  if  the  infant 
attaining  majority,  avoids  his  contracts,  he  must  restore  the 
consideration,  or  so  much  of  it  as  he  has,  on  demand.  If  the 
contract  is  executed,  then  in  asserting  his  claim  he  must  become 
the  actor,  and  so  going  into  court  for  equity  he  must  do  equity 
as  a  condition  on  which  relief  will  be  decreed  him.  This  is  the 
difference  between  asking  and  resisting  relief,  and  he  must 
tender  the  consideration  or  so  much  as  he  has.^  If  the  suit  be 
at  law,  the  tender  of  the  consideration  need  not  be  made  as  a 
condition  precedent  of  recovering  property  he  had  disposed  of. 
If  the  suit  be  in  equity  that  he  brings,  and  if  the  money  or  con- 
sideration be  in  esse,  and  in  his  possession,  or  in  him  from 
whom  the  right  to  sue  is  derived,  the  bill,  to  be  sufficient,  must 
tender,  or  offer  to  produce  or  pay  as  the  case  may  be.  But  if 
the  quandam  infant  has,  during  minority,  squandered  or  used 
the  consideration,  then  no  tender  need  be  made.^ 

App.  82 ;  2  Pom.  Eq.  945 ;  Ex  parte  v.  Cavanaugh,  67  N.  H.  149,  30  A. 

Unity,  etc.,  Asso.,  3  DeG.  &  J.  63;  350;   Johnson  v.  Ins.  Co.,  56  Minn. 

Charles   v.   Hastedt,    51    N.   J.   Eq.  365,  57  N.  W.  930,  59  N.  W.  992, 

171,  26  A.   564;    Bradshaw  v.  Van  26  L.  R.  A.    187,  45   Am.   St.   Rep. 

Winkle,  133  Ind.  134,  32  N.  E.  877;  473  and  note. 

Lacy  V.  Pixler,  120  Mo.  383,  25  S.  1.  Smith    v.    Evans,    5    Humph. 

W.  206;  Evans  v.  Morgan,  69  Miss.  (Tenn.)    70;    Bartholomew  v.   Fin- 

328,    12    So.    270;    Thormachlen    v.  nemore,     17    Barb.     (K    Y.)     428; 

Kaeppel,    86    Wis.    378,    56    N.    W.  Hillyer  v.  Bennett,  3  Edw.   (N.  Y.) 

1089;   Pemberton  Build.  &  L.  Asso.  222;     Mustard     v.     Wohlford,     15 

v.  Adams,  53  N.  J.  Eq.  258,  31   A.  Gratt.   (Va.)   329,  76  Am.  Dec.  209; 

280;     United    States,    etc.,    Invest-  Bedinger    v.    Whorton,     27    Gratt. 

ment  Co.   v.   Harris,   142  Ind.   226,  (Va.)    857. 

40  N.  E.  1072,  41  N.  E.  451;  Stack  2.  Eureka    Co.    v.    Edwards,    71 

94 


Ch.    3  INFANTS.  §§    71,  72 

Hence,  where  an  infant  has  executed  a  deed  to  lands  sold  hj 
him,  and  received  and  consumed  the  purchase-money  during  his 
infancy,  a  bill  averring  this  fact,  filed  by  one  claiming  the  land 
under  a  deed  executed  by  the  infant,  after  he  had  attained 
majority,  to  have  the  first  deed  canceled  as  a  cloud  upon  his 
title,  need  not  tender  back  the  purchase-money  received  by  the 
infant.^  And  the  fact  that  the  last  purchaser  had  notice  of  the 
first  deed  given  by  the  infant  is  immaterial,  because  the  dis- 
affirmance of  the  first  deed  destroyed  all  claims,  both  legal  and 
equitable,  and  left  him  no  pretense  or  any  equity  to  assert 
against  the  later  purchaser  ;*  the  second  grantee  in  such  case 
stands  in  the  shoes  of  his  gTantor  and  can  set  up  the  right  of 
the  latter  to  avoid  his  deed  after  coming  of  age.^ 


ARTICLE  V. 

GuAEDiAN^s  Eight  to  Conteact  foe.  His  Ward. 

Section  72.  Guardian's  Right  to  Contract  for  His  Ward. 

73.  Guardian's  Capacity  to  Contract  for  Ward. 

74.  Guardian's  Title  to  the  Ward's  Property. 

75.  Personal  Liability  of  the  Guardian. 

§  72.  Guardian's  right  to  contract  for  his  ward. —  A  guar- 
dian has  no  authority  whatever  to  bind  either  the  person  or  the 
estate  of  his  ward  by  contract.  For  any  reasonable  expenditure 
made  by  a  guardian,  out  of  his  own  means,  for  the  benefit  of 

Ala.  248,  76  Am.  Rep.  314;  Good-  Mustard  v.  Wohlford,  15  Gratt. 
man  v.  Winter,  64  Ala.  410,  38  Am.  (Va.)  329,  76  Am.  Dec.  209;  Bart- 
Rep.  13;  Badger  v.  Phinney,  15  lett  v.  Drake,  100  Mass.  174,  il 
Mass.   359,   8  Am.   Dec.   105;    Price  Am.  Rep.   101. 

V.  Furman,  27  Vt.  268,  65  Am.  Dec.  3.  Eureka    Co.    v.    Edwards,    71 

194;   Green  v.  Green,  69  N.  Y.  553,  Ala.   248. 

25  Am.  Rep.  233;  Phillips  v.  Green,  4.  Eureka    Co.    v.    Edwards,    71 

5   T.   B.  Mon.    (Ky.)    344;    Roberts  Ala.  248,  46  Am.  Rep.  314. 

V.  Wiggin,  1  N.  H.  73,  8  Am.  Dec.  5.    Mustard      v.      Wohlford,      15 

38;  Walsh  v.  Young,  110  Mass.  Gratt.  (Va.)  329,  76  Am.  Dec.  209. 
396;    Dill   v.   Bowen,   54   Ind.   204; 

95 


§§    T2,  73  FREEDOM    OF    CONTRACT.  Ch.    3 

his  ward,  he  is  entitled  to  be  reimbursed  out  of  the  ward's  estate, 
but  this  is  the  limit  of  the  ward's  liability,  in  law  or  equity. 
The  gnardian  has  no  authority  or  capacity  to  impose  contract 
obligations  on  his  ward.  What  he  does  for  his  ward  must  be 
done  under  the  court  of  competent  jurisdiction.*^  Hence,  a 
guardian  has  no  power  to  bind  either  the  person  or  the  estate  of 
his  ward  by  contract,^  even  when  made  in  his  capacity  as 
guardian.^ 

At  common  law  a  guardian  was  regarded  as  a  trustee,  clothed 
with  such  powers  and  rights  as  were  necessary  for  the  discharge 
of  the  trust  imposed  upon  him,  and  he  was  held  accountable  for 
the  faithful  discharge  of  his  duties.  At  the  present  time  a 
guardian's  duties  are  prescribed  by  statute,  which,  must  be  con- 
sulted in  each  State  to  know  his  duties  and  rights.  He  is  under 
the  probate  court  which  approves  or  disapproves  his  transactions 
in  dealing  with  the  ward;  and  with  this  court  he  makes  his 
final  settlement  and  is  discharged  when  his  accounts  are  satis- 
factory. 

§  73.  Guardian's  capacity  to  contract  for  ward -The  guar- 
dian cannot  bind  the  person  or  the  estate  of  his  ward  by  a  con- 
tract made  by  himself.  Such  contracts  bind  him  personally, 
and  a  recovery  for  breach  of  it  must  be  had  in  an  action  against 
him.^  But  a  guardian  may  be  authorized,  by  a  court  of  com- 
petent jurisdiction,  to  make  a  contract  for  his  ward,  but,  in  such 
case,  he  does  not  exercise  a  power  belonging  to  his  office,  but  an 
extraordinary  power  granted  to  him  for  a  special  purpose.^ 

6.  White  V.  Joyce,  158  U.  S.  128,  Ala.  493;  Dalton  v.  Jones,  51  Miss. 
15  S.  Ct.  788;  Sehouler  on  Doni.  585;  Cheney  v.  Roodhouse,  135  III. 
Eel.  342-344.  Compare  Barnum  v.  265,  25  N.  E.  1019;  Kingsbury  v. 
Frost,  17  Gratt.    (Va.)    398.  Powers,  131  111.  188,  22  N.  E.  479. 

7.  Reading  v.  Wilson,  38  N.  J.  1.  Hicks  v.  Chapman,  10  Allen 
Eq.  446.  (Mass.),  463;   Bicknell  v.  Bicknell, 

8.  Phelps  V.  Worcester,  11  N.  H.  Ill  Mass.  265;  Wallis  v.  Bard- 
51;  Tenney  v.  Evans,  14  N.  H.  343,  well,  126  Mass.  366. 

40    Am.    Dec.    194;    McGavock    v.  2.  Reading  v.  Wilson,   38   N.   J. 

Whitford,   45    Miss.    452;    St.    Jos-       Eq.  446. 
eph'a    Academy    v.    Augustine,    55 

96 


Cll.    3  INFANTS.  §§    Id,  14:,  16 

Without  the  authority  of  court,  a  contract  by  a  guardian  for 
the  support  and  care  of  his  ward  binds  the  guardian  personally, 
and  not  the  ward.^  And  so  admissions  of  a  guardian  ad  litem 
are  not  binding  upon  the  infant  if  not  supported  by  proof,  and 
a  decree  based,  thereon  will  not  conclude  him.* 

§  74.  Guardian's  title  to  the  ward's  property. — The  title  of 
the  property  remains  in  the  ward.  The  guardian  has  only  a 
naked  power,  not  coupled  with  an  interest.  The  debts  of  th© 
"ward  remain  his  debts,  and  can  be  recovered  by  suit  against  him^ 
not  by  suit  against  the  guardian;^  but  such  suit  may  be  de- 
fended by  the  guardian  in  behalf  of  the  ward. 

It  is  the  guardian's  duty  to  see  that  his  ward  is  maintained 
and  educated  in  a  manner  suitable  to  his  means,  and  if,  in  the 
performance  of  this  duty,  it  becomes  necessary  for  him  to  enter 
into  contracts,  such  contracts  impose  no  duty  on  the  ward  and 
do  not  bind  his  estate,  but  bind  the  guardian  personally  and 
alone.  For  any  reasonable  expenditure  made  by  a  guardian, 
out  of  his  own  means,  for  the  benefit  of  the  ward,  the  court  will 
allow  him  reimbursement  out  of  the  ward's  estate,  but  this  is  the 
limit  of  the  ward's  liability,  in  equity  or  at  law.^ 

§  75.  Personal  liability  of  the  guardian. —  A  guardian  can- 
not, by  his  own  contract,  bind  the  person  or  estate  of  his  ward ; 
but  if  he  promises  on  a  sufficient  consideration  to  pay  the  debt 
of  his  ward,  he  is  personally  bound  by  it,  although  he  expressly 
promises  as  guardian.  And  a  guardian  who  has  discharged  a 
debt  of  his  ward,  may  lawfully  indemnify  himself  out  of 
the  ward's  estate ;  or  if  he  be  discharged  from  his  guar- 
dianship, he  may  have  an  action  against  the  ward,  for  money 

3.  Rollins  V.  Marsh,  128  Mass.  344;  Rollins  v.  Marsh,  128  Mass. 
116.  116;    Reading  v.   Wilson,   38   N.   J. 

4.  White  V.  Joyce,  158  U.  S.  128,  Eq.  446;  Compare  Barnum  v. 
15  S.  Ct.  788.  Frost,  17  Gratt.  (Va.)  398;  Jacobia 

1.  Brown  v.  Chase,  4  Mass.  436;  v.  Terry,  92  Mich.  275,  52  N.  W. 
Simons  v.  Almy,  100  Mass.  239.  629. 


2.  Sehouler    on    Dom.    Rel.    342- 


97 


§    T5  FREEDOM    OF    CONTRACT.  Ch.    3 

paid  for  his  use.^  But  he  cannot  maintain  an  action  against  his 
ward  for  money  advanced  or  services  rendered  as  guardian  of 
the  ward  until  he  has  settled  his  guardianship  vi^ith  the  court,^ 
for  an  infant  is  liable  to  his  guardian  solely  on  a  decree  of  the 
proper  court  on  the  adjustment  of  his  guardian  account.^ 

It  is  competent  for  a  v^ard  when  he  becomes  of  age  to  ratify 
and  affirm  a  sale  made  by  the  guardian  where  it  is  invalid  for  a 
want  of  compliance  with  some  statute  requisite,  or  to  avoid  it 
within  a  reasonable  time.^ 

1.  Sperry    v.     Fanning,    80    111.           3.  Phelps  v.  Worcester,  11  N.  H. 

.371.  51. 

3.  Smith   V.    PHlbriek,   2   N.   H.           4.  Tracy  v.  Roberts,  88  Me.  310, 

395.  34  A.  68,  51  Am.  St.  Rep.  394. 


98 


CHAPTER  IV. 

Contract  Required  to  be  in  Writing  —  Statute   of  Frauds. 


ARTICLE  I. 

The  Statute  —  Sections  Four  and  Seventeen. 

Section  76.  When  Enacted. 

77.  Section  Four. 

78.  Section  Seventeen. 

§  76.  When  enacted. —  In  16Y6,  an  act  was  passed,  entitled, 
"An  Act  for  Prevention  of  Frauds  and  Perjuries."  ^  It  had 
for  its  object  the  "prevention  of  fraudulent  practices,  which  are 
commonly  endeavored  to  be  upheld  by  perjury  and  subordina- 
tion of  perjury."  The  author,  it  is  thought,  was  Lord  Notting- 
ham, though  it  has  been  ascribed  to  Lord  Hale. 

The  statutes  of  most  of  the  States  follow  this  enactment. 
Two  sections  affect  the  form  of  simple  contracts — the  fourth 
and  the  seventeenth.  The  State  statutes  are  not  exactly  alike 
in  all  particulars,  and,  therefore,  must  be  consulted  to  see  the 
correct  meaning. 

"  The  Statute  of  Frauds,"  as  it  is  commonly  called,  has  made 
a  great  change  in  the  form  of  contracts.  Before  its  enactment 
nearly  every  contract  could  be  orally  made,  with  the  same  effect 
as  by  writing. 

The  requirement  of  writing  to  hold  a  party  upon  a  represen- 
tation as  to  the  character,  credit  and  the  like,  of  a  third  person, 
was  enacted  since  the  original  English  statute.^ 

1.  29  Car.  2,  c.  3.     It  took  effect  Vict.,  c.  59,  sec.  2;  44  and  45  Vict., 

after  the   24th   day   of   June,   1677.  c.  59,  sec.  3. 

As  to  the  modification  of  this  stat-  2.  9  Geo.  IV,  c.   14,  sec.  o,  com- 

ute  in  England,  see  7  Will.  4,  and  monly  called  Lord  Tentorden's  Act. 
1    Vict.,   c.    26,   sec.   2;    42   and   43 

99 


§§    77,  78  FREEDOM    OF    CONTEACT.  Cll.    4 

§  77.  Section  four. —  The  fourtli  section  is  as  follows :  "ISTo 
action  sliall  be  brought  whereby  to  charge  any  executor  or  ad- 
ministrator, upon  any  special  promise,  to  answer  damages  out 
of  his  own  estate;  or  whereby  to  charge  the  defendant,  upon 
any  special  promise,  to  answer  for  the  debt,  default,  or  mis- 
carriage of  another  person;  or  to  charge  any  person  upon  any 
agreement  made  upon  consideration  of  marriage ;  or  upon  any 
contract  or  sale  of  lands,  tenements,  or  hereditaments,  or  any 
interest  in  or  concerning  them ;  or  upon  any  agreement  that  is 
not  to  be  performed  within  the  space  of  one  year  from  the 
making  thereof;  unless  the  agreement  upon  which  such  action 
shall  be  brought,  or  some  memorandum  or  note  thereof,  shall  be 
in  writing,  and  signed  by  the  party  to  be  charged  therewith,  or 
some  other  person  thereunto  by  him  lawfully  authorized." 

§  78.  Section  seventeen. —  Section  seventeen  is  as  follows ; 
"  No  contract  for  the  sale  of  any  goods,  wares,  and  merchan- 
dise, for  the  price  of  ten  pounds  sterling  or  upwards,  shall  be 
allowed  to  be  good ;  except  the  buyer  shall  accept  part  of  the 
goods  so  sold,  and  actually  receive  the  same,  or  give  something 
in  earnest  to  bind  the  bargain,  or  in  part  of  payment,  or  that 
some  note  or  memorandum  in  writing  of  the  said  bargain  be 
made,  and  signed  by  the  parties  to  be  charged  by  such  contract 
or  their  ag^ents  thereunto  lawfully  authorized." 


100 


Ch.    4  STATUTE    OF    FRAUDS.  §    79 

AETICLE  11. 

CoNTKACTs  Not  Within  Section  Four. 

Section  79.  Contracts  Created  by  Law. 

80.  Executed  Contracts. 

81.  Modification  of  Written  Contracts  Required  by  the  Statute. 

82.  Executed  on  One  Side. 

§  79.  Contracts  created  by  law. —  Where  the  law  raises  a 
promise,  it  is  not  within  the  statute.'^  x\nd  so  where  land  is  con- 
veyed by  deed  poll,  and  the  grantee  enters  under  the  deed, 
certain  duties  being  reserved  to  be  performed,  as  no  action  lies 
against  the  grantee  on  the  deed,  the  grantor  may  maintain  as- 
sumpsit for  the  non-performance  of  the  duties  reserved;  and 
the  promise,  being  created  by  law,  is  not  within  the  statute,^ 
which  applies  only  to  contracts  made  in  fact.  So  a  suit  can  be 
brought  on  an  implied  contract  to  refund  money  which,  in  con- 
sequence of  the  vendor's  misrepresentation  in  the  sale  of  land, 
the  grantee  paid  him  in  excess  of  the  contract  price.^ 

The  statute  of  frauds  applies  only  to  common  law  agreements 
where  the  consideration  is  the  subject  of  mutual  agreements  be- 
tween the  parties,  and  not  to  instruments  created  under  and 
derived  from  other  obligations  from  special  statutes,  without 
the  acceptance  or  assent  of  the  parties  for  whose  ultimate  benefit 
they  were  given.*  So  where  a  statute  requires  an  undertaking 
to  be  entered  into  by  securities  in  order  to  give  a  right  of  appeal, 
an  instrument  containing  the  requisite  stipulation  is  valid,  al- 
though it  does  not  express  the  consideration,  and  is  not  under 
seal.^ 

1.  Jackson  v.  Benson,  11  Johns.  11  A.  167.  See,  also,  Sage  v.  Wilcox, 
(N.  Y.)   91,  6  Am.  Dec.  355;  Jack-        G  Conn.  84. 

son   V.    Seelye,    16   Johns.    ^N.  Y.)  4.  Thompson  v.  Blanchard,  3  N. 

197,  8   Am.   Dec.   306;   Hills  v.   EI-  Y.  335. 

liott,  12  Mass.  26,  7  Am.  Dec.  26.  5.  Doolittle     v.     Dinny,     31     N. 

2.  Goodwin  v.  Gilbert,  9  Mass.  Y.  350.  See,  also,  Smith  v.  Brad- 
510.  ley,  1  Root   (Conn.),  150. 

3.  Arnold  v.  Garsf,   16   R.   I.  i, 

101 


§§    80,  81  FREEDOM    OF    CONTRACT.  Cll.    4: 

§  8o.  Executed  contracts. —  A  parol  contract  may  be  void- 
able by  the  statute  of  frauds ;  but  when  such  a  contract  has  been 
fully  executed  and  performed,  it  is  no  longer  within  the  statute 
as  between  the  parties  who  have  already  received  its  benefits.^ 
So  when  the  terms  of  an  instrument,  required  to  be  in  writing 
under  the  statute  of  frauds,  are  afterwards  modified  by  parol, 
and  as  so  modified  have  been  fully  carried  out,  the  obligation  is 
discharged.^ 

The  statute  provides  that  "  no  action  shall  be  brought  where- 
by to  charge  "  another  on  a  parol  contract ;  so  when  it  has  been 
executed  there  is  no  occasion  for  an  action,  and  the  contract  is 
valid.^ 

The  statute  applies  to  executory  contracts  therein  indicated. 
If  the  contract  is  an  original  and  personal  contract,  the  statute 
does  not  apply.  Thus,  an  oral  executory  contract  of  insurance, 
when  not  controlled  by  statute,  is  valid,  as  it  is  an  original  con- 
tract, and  the  statute  of  frauds  has  no  application.*  For  such 
contract  is  not  made  to  answer  for  the  debt,  default,  or  miscar- 
riage of  another,  but  is  an  original  contract  between  the  in- 
surance company,  represented  generally  by  an  agent,  and  the 
party  to  be  insured.^ 

§  8i.  Modification  of  written  contracts  required  by  the 
statute. —  While  written  contracts,  which  would  have  been  law- 

1.  McClellan  v.  Sanford,  26  Wis.  418,   29   P.   697;    SEowalter  v.   Mc- 

595;    Niland   v.    Murphy,    73    Wis.  Donell,  83  Tex.  158,  18  S.  W.  491; 

326,    41    N.    W.    335;     Pereaux    v.  btone  v.  Dennison,  13  Pick.  (Mass.) 

Simon,    79    Wis.    392;    Hagelin    v.  1,  23  Am.  Dec.  654. 

Wacks,    61    Mimi.    214,    63    N.    W.  2.  Doherty  v.  Doe,  18  Colo.  456, 

624;  Gardner  v.  Gardner,  106  Midi.  33  P.  65. 

18,  63  N.  W.  988 ;  Wilson  v.  Fuller,  3.  Bolton  v.  Tomlin,  5  Ad.  &  E. 

58  Minn.  349,  59  N.  W.  988;  Ball  v.  856;   Slatter  v.  Meek,  35  Ala.  528; 

Stover,   82   Hun    (N.   Y.),   460,    31  Newman  v.  Nellis,  97  N.  Y.  285. 

N.    Y.    S.    781;    Largerfelt   v.    Me-  4.  Croft  v.   Ins.   Co.,   40   W.  Va. 

Kie,    100    Ala.    430,    14    So.    281;  508,  21  S.  E.  854,  52  Am.  St.  Rep. 

Swanzey   v.   Moore,   22    111.    63,    74  902;  Ins.  Co.  v.  Colt,  20  Wall.   (U. 

Am.    Dec.    134;    King  v.    Bushnell,  S.)    560. 

121  111.  656,  13  N.  E.  245;  Webster  5.  Nat.    Fire    Ins.    Co.    v.    Rowe 

V.   Le   Compte,   74   Md.   249,   22   A.  (Ky.),  49  S.  W.  Rep.  422,  20  Ky. 

232;    Harris    v.    Harper,    48    Kan.  L.  R.  1473. 

102 


Ch.    4  STATUTE    OF    FRAUDS.  §§    81,  82 

ful  if  unwritten,  may  be  modified  by  parol  subsequently  in 
many  cases,  yet  this  cannot  be  done  where  the  law  requires  the 
agreement  to  be  in  writing.^  So  parol  evidence  cannot  be  re- 
ceived to  show  a  subsequent  verbal  agreement  to  change  any  of 
the  terms,  as  no  part  of  the  contract  can  rest  in  parol.^  In  cases 
within  the  statute  of  frauds,  an  action  cannot  be  maintained 
upon  the  contract  not  in  writing;  but  in  a  controversy  between 
parties  to  a  written  contract,  an  executed  parol  agreement  to 
waive  a  particular  provision  in  the  contract  may  be  sho^vn;' 
this  is  the  general  rule,  though  there  are  exceptions. 

If  by  part  performance  the  contract  is  taken  out  of  the  stat- 
ute, and  is  then  valid,  a  subsequent  verbal  modification  of  it, 
with  respect  to  the  manner  of  performance,  is  not  within  the 
statute.'*  In  such  case  there  is  no  change  in  the  terms  of  the 
original  contract,  but  only  the  substitution,  with  respect  to  a 
single  item  of  one  mode  of  performance  for  another.^ 

§  82,  Executed  on  one  side. —  It  is  the  prevailing  doctrine 
that  the  statute  of  frauds  does  not  extend  to  actions  for  payment 
upon  contracts  which  have  been  wholly  executed  within  one 
year  by  one  of  the  parties  thereto.*^  This  is  the  English  rule 
and  has  been  followed  in  Alabama,  Arkansas,  Georgia,  Illinois, 
Indiana,  Maine,  Maryland,  Missouri,  Ohio,  Ehode  Island, 
South  Carolina,  and  Wisconsin.^     The  earliest  and  latest  de- 

1.  Goss    V.    Nugent,    5    Barn.    &  419;    Cummings  v.   Arnold,  3  Met. 
Cr.    58;     Stowell    v.    Robinson,     3  (Mass.)     486,    37    Am.    Dec.    155; 
Bing.    (N.  C.)    928;    Stead  v.  Daw-  Packer  v.  Steward,  34  Vt.  127. 
ber,   10  Ad.  &  El.  57;   Marshall  v.  5.  Goss    v.    Nugent,    2    Nev.    &, 
Lynn,  6  Mees.  &  Wels.   109;   Blood  Man.  28. 

V.   Goodrich,   9  Wend.    (N.  Y.)    68,  6.  Donellan  v.   Read,   3   Bam.  & 

24  Am.  Dec.  121  and  note.  Ad.   889;    South   v.   Strawbridge,   2 

2.  Abell  V.  Munson,  18  Mich.  C.  B.  808;  Cherry  v.  Heming,  4 
306,  100  Am.  Dec.  165.  and  note.  Exch.  631;  Si-ith  v.  Neale,  '2  C.  B., 
See,  also,  Rucker  v.  Harrington,  52  N.  S.  67;  Miles  v.  Aiford  Estate 
Mo.  App.  481.  Co.,  54  L.  J.  Eq.   1035,  1040. 

3.  Lee   v.   Hawks,   68   Miss.   669,  7.  Rake    v.    Pope,    7    Ala.    161 
9  So.  828,  13  L.  R.  A.  633  and  note.  Pledger  v.  Garrison,  42   Ark.   246 

4.  Blanchard  v.   Trim,   38   N.  Y.  Johnson    v.    Watson,    1     Ga.    348 
225 ;    Organ  v.    Stewart,   60  N.   Y.  Curtis  v.  Sage,  35  HI.  22 ;  Haigh  v. 

103 


§  82 


FREEDOM    OF    CONTRACT. 


Ch.  4 


cisions  in  ISTew  Hampshire  follow  the  English  rule.^  But  the 
contrary  doctrine  is  held  in  Massachusetts,  New  York,  and 
Vermont,^ 

The  first  doctrine  holds  that  the  statute  does  not  extend  to 
contracts  which  are  wholly  executed  on  one  side,  or  which  may 
be  executed  by  one  side  within  a  year,  but  only  to  contracts 
which,  as  a  whole,  are  not  to  be  executed  within  a  year;  be- 
cause the  words  "  not  to  be  performed,"  mean  not  to  be  per- 
formed on  either  side  within  a  year.  And,  inasmuch  as  the 
contract  is  not  executory  except  as  to  the  matter  of  payment, 
or  recovery  back  of  the  consideration,  as  to  which  a  clear  right 
of  action  exists,  such  cases  are  not  within  the  mischief  which 
the  statute  is  designed  to  prevent,  and,  therefore,  not  to  be 
construed  as  within  the  operation  of  the  statute.  This  is  the 
weight  of  authority.'^" 

The  minority  of  courts  hold  that  performance  by  one  party 
is  not  performance  of  the  agreement,  and  that,  in  any  view,  the 
part  of  the  contract  sued  upon  comes  within  the  statute,  for 
w^hich  the  part  performed  is  only  the  consideration.^^ 


Blythe,  20  Ind.  24;  Holbrook  v. 
Armstrong,  10  Me.  31;  Ellicott  v. 
Turner,  4  Md.  476;  Suggett  v. 
Cason,  26  Mo.  221;  Randall  v.  Tur- 
ner, 17  Ohio  St.  262;  Durfee  v. 
O'Brien,  16  R.  I.  213,  14  A.  857; 
Compton  V.  Martin,  5  Rich.  (S. 
Car.)  14;  McClellan  v.  Sanford,  26 
Wis.  596. 

8.  Blanding  v.  Sargent,  33  N.  H. 
239,   66   Am.   Dec.    720;    Emery   v. 


Smith,    46    K   H.    151;    Perkins   v. 
Clay,  54  N.  H.  518. 

9.  Marcy  v.  Marcy,  9  Allen 
(Mass.),  8;  Lockwood  v.  Barnes, 
3  Hill  (N.  Y.),  128,  38  Am.  Dec- 
620  and  note ;  Broadwell  v.  Getman. 
2  Denio  (N.  Y.),  87;  Kellogg  v. 
Clark,  23  Hun  (N.  Y.),  393;  Pierce 
V.  Paine,  28  Vt.  34. 

10.  Durfee  v.  O'Brien,  16  R.  I. 
213,  14  A.  857. 

11.  Pierce  v.  Paine,  28  Vt.  34. 


104 


Ch.    4  STATUTE  OF   FRAUDS.  §    83 

ARTICLE  III. 
Sufficiency  of  Memorandum. 

Section  83.  What  is  a  Valid  Memorandum. 

84.  Delivery  of  Note  or  Memorandum. 

85.  Letters,  Telegrams,  and  Other  Papers. 

86.  Evidence  of  Contract. 

87.  Sale  by  Auctioneer  or  Broker — Sufficiency   of   Memorandum. 

88.  Description  of  Parties. 

89.  Evidence   to    Identify    Parties. 

90.  Parol  Evidence  to  Identify  Agent  or  Principal. 

91.  Terms  of  the  Memorandum. 

92.  Description  of  Subject-Matter. 

93.  Consideration. 

94.  For  Value  Eeceived. 

95.  Seal — Consideration. 

96.  Guaranty — Consideration. 

97.  Signature. 

98.  ]\Iutuality  of  Agreement. 

99.  Signature  by  Agent. 

§  83.  What  is  a  valid  memorandum. —  A  contract  itself, 
and  the  memorandum  which  is  necessary  to  its  validity  under 
the  statute  of  frauds,  are  in  their  nature,  distinct.  The  statute 
presupposes  a  contract  by  parol.^  The  memorandum  may  be 
made  at  one  time  and  the  note  or  memorandum  of  it  at  a  sub- 
sequent time.  The  contract  may  be  proved  by  parol,  and  the 
memorandum  may  be  supplied  by  documents  and  letters  writ- 
ten at  various  times,  if  they  all  appear  to  have  relation  to  it,  and 
if  coupled  together,  they  contain  by  statement  or  reference  all 
the  essential  parts  of  the  bargain,  signed  by  the  party  to  be 
charged  or  his  agent.^ 

When  the  memorandum  of  a  sale  of  land  contains  the  es- 
sential terms  of  the  contract,  the  price  to  be  paid  and  the  date  of 
the  payment,  all  expressed  with  such  certainty  as  that  they  may 

1.  Marsh  v.  Hyde,  3  Gray  maeher,  9  Allen  (Mass.),  412; 
(Mass.),  333.  Townsend    v.    Kennedy,    6    S.    Dak. 

2.  Williams    v.    Bacon,    2    Gray  47,  60  N.  W.   164. 
(Mass.),    387;    Lerned    v.    Wanne- 

105 


§    83  FREEDOM    OF    CONTRACT,  Cll.    4 

be  understood  from  the  writing  itself,  which  was  signed  by  the 
purchaser,  it  is  sufficient.^ 

A  stipulation  not  self-explanatory  may  be  explained  by  other 
testimony,  written  or  oral.* 

The  memorandum  must  contain  in  substance  the  complete 
agreement  in  terms  sufficiently  lucid  to  be  understood,^  and  an 
oral  acceptance  of  a  written  contract  is  sufficient,  which  may 
be  proved  by  parol  evidence.^  And  such  evidence  may  be  ad- 
mitted as  is  admissible  in  interpreting  ordinary  contracts.' 

A  vote  of  an  authorized  committee  of  a  city,  electing  their 
clerk  city  engineer  for  a  year  from  a  subsequent  date,  duly  re- 
corded and  signed  by  him  as  clerk,  is  a  sufficient  memorandum.^ 
And  a  vote  of  a  town  council  signed  by  its  clerk,  the  town 
council  having  been  made  previously  the  agent  of  the  town  by 
vote  in  town  meeting,  is  sufficient.' 

Entries  by  the  party  on  his  own  or  his  agent's  books  are  suffi- 
cient ;^°  and  also  entries  in  the  records  of  a  corporation;^^  and 
recitals  in  a  will  to  answer  for  the  debts  of  a  son.^^ 

In  general,  the  memorandum  must  state  the  whole  contract 
with  reasonable  certainty  so  that  the  names  of  the  parties  thereto 
and  the  substance  thereof  may  be  made  to  appear  from  the 
writing  itself,  without  recourse  to  parol  evidence.^^ 

3.  Reynolds  v.  Kirk,  105  Ala.  9.  Marden  v.  Champlin,  17  R.  I. 
446,  17  So.  95.  423,  22  A.   938;    Compare  Wilhelm 

4.  Willis  V.  Hammond,  41  S.  Car.  v.  Fagan,  90  Mich.  6,  50  N.  W. 
153,  19  ».  E.  310.  1072. 

5.  Reid  v.  Kenworthy,  25  Kans.  10.  Clason  v.  Bailey,  14  Johns. 
701;  Newbery  v.  Wall,  65  K  Y.  (N.  Y.)  484;  Coddington  v.  God- 
484;  Whalen  v.  Sullivan,  102  Mass.  dard,  16  Gray  (Mass.),  436;  John- 
204;  Smith  v.  Jones,  66  Ga.  338,  son  v.  Dodgson,  2  Mees.  &  Wels. 
42  Am.  Rep.  72.  653. 

6.  Lee  v.  Cherry,  85  Tenn.  707,  11.  Tufts  v.  Plymouth,  etc.,  Co., 
4  S.  W.  835,  4  Am.  St.  Rep.  800.  14  Allen    (Mass.),  407. 

7.  Beckwith  v.  Talbot,  95  U.  S.  12.  In  re  Hoyle,  41  Weekly  Rep. 
289;  White  v.  Core,  20  W.  Va.  272.  81. 

8.  Chase  v.  Lowell,  7  Gray  13.  Cheever  v.  Sehall,  87  Hun 
(Mass.),  33.  See,  also,  Grimes  v.  (N.  Y.),  32,  33  N.  Y.  S.  751;  Mentz 
Hamilton  County,  37  Iowa,  290;  v.  Newmiller,  122  N.  Y.  491,  25  N. 
Johnson      v.      Church,      11      Allen  E.   1044,  11  L.  R.  A.  97  and  note, 

(Mass.),   123.  19  Am.   St.   Rep.   514. 

106 


Cb.    4  STATUTE    OF    FRAUDS.  §§    84,  85 

§  84.  Delivery  of  note  or  memorandum. —  The  statute  itself 
is  entirely  silent  on  the  question  of  delivery  of  the  note  or 
memorandum  of  the  bargain,  and  its  literal  requirements  are 
fulfilled  by  the  existence  of  the  note  or  memorandum  of  the  bar- 
gain, signed  by  the  party  to  be  charged  thereby.  The  statute 
deals  exclusively  with  the  existence  and  not  Avith  the  custody  of 
the  paper  ;^  that  is,  when  the  memorandum  is  evidence  of  an 
existing  contract  previously  made  by  the  parties,  so  delivery  of 
it,  in  the  sense  in  which  that  word  is  used  in  respect  to  deeds, 
is  necessary,  for  the  writing  is  not  the  substantive  act  or  thing 
itself,  as  is  a  deed,  but  only  the  means  by  which  the  substantive 
act  —  the  making  of  the  contract  —  is  shown  to  have  been 
done  ;^  the  acceptance  being  unconditional,  it  is  not  material 
that  it  is  never  delivered  to  the  party  making  the  written  offer 
or  to  any  one  for  him.^ 

A  deed  must  be  delivered  when  used  as  a  memorandum  of  an 
agreement  to  sell  in  fact,*  or  in  escrow.^ 

Where  an  agreement  is  to  be  delivered  before  it  becomes  bind- 
ing, it  does  not  take  effect  until  such  delivery,  and  is  not,  there- 
fore, a  sufficient  memorandum  under  the  statute.^ 

§  85.  Letters,  telegrams  and  other  papers. —  In  determining 
whether  there  is  a  written  proof  of  a  contract,  all  the  papers 
must  be  considered.    Where  no  one  paper  alone,  which  is  form- 

1.  Drury  v.  Young,  58  Md.  546,  85  Ala.  286,  4  So.  748;  Compare 
42  Am.  Rep.  343  and  note.  Ducett   v.    Wolf,   81   Midi.   311,   45 

2.  Townsend    v.    Hargraves,    118       N.  W.  829. 

Mass.  325.  6.  Parker     v.     ParKer,     1     Gray 

3.  Alford  V.  Wilson,  95  Ky.  506,  (Mass.),  409;  Cagger  v.  Lansing, 
26  S.  W.  539.  43  N.  Y.  550;  Campbell  v.  Thomas, 

4.  Swain  v.  Burnett,  89  Cal.  42  Wis.  437,  24  Am.  Rep.  427; 
564,  20  P.  1093;  Wier  y.  Batdorf,  Popp  v.  Swanke,  68  Wis.  364,  31 
24  Neb.  83,  38  N.  W.  22;  Day  v.  N.  W.  916;  Weir  v.  Batdorf,  24 
Lacasse,  85  Me.  242,  27  A.  124;  Neb.  83,  38  N.  W.  22;  Conner  v. 
Callanan  v.  Chapin,  158  Mass.  113,  Baldwin,  16  Minn.  172;  Johnson  v. 
32  N.  E.  941.  Brook,    31    Miss.    17,   66    Am.    Dec. 

5.  Cannon  v.  Handfey,  72  Cal.  547 ;  Callanan  v.  Chapin,  158  Mass. 
133,  13  P.  315;   Johnston  v.  Jones,  113,  32  N.  E.  194. 


107 


§    85  FREEDOM    OF    CONTEACT.  Cll.    4 

ally  signed,  purports  t^  express  the  terms  of  tlie  contract,  all 
the  letters  that  have  passed  between  the  parties  must  be  con- 
sidered in  order  to  see  what  the  contract  actually  was  as  shown 
by  the  writings.^  And  if  the  letters  of  offer  and  acceptance 
contain  all  the  terms  agreed  on  between  the  parties,  the  com- 
plete contract  thus  arrived  at  cannot  be  affected  by  subsequent 
negotiations.^ 

A  telegram  is  a  sufficient  memorandum  to  charge  the  sender.^ 
It  is  the  general  rule  that  two  or  more  papers  which  have 
been  executed  as  parts  of  one  transaction  may  be  read  and  con- 
strued together,  in  order  to  ascertain  the  scope  and  effect  of  the 
transaction,  and  whether  it  is  within  the  statute  of  frauds.* 
!Nor  are  all  the  papers  required  to  be  signed  by  the  party  sought 
to  be  charged,  provided  those  not  thus  signed  are  referred  to  in 
those  which  are  signed.  But  the  connection  between  such  docu- 
ments must  appear  from  the  signed  memoranda,  and  cannot  be 
established  by  parol  evidence.^ 

The  courts  have  gone  very  far  in  construing  referential  words 
so  as  to  connect  several  documents  and  collect  the  terms  of  the 
contract  out  of  them.  A  correspondence  through  letters  or  tele- 
grams, or  both,  if  they  show  clearly  what  the  contract  was,  is 
sufficient  under  the  statute.  A  meromandum  of  agreement  is 
sufficient,  and  it  may  be  found  in  one  or  more  papers,  some  or 

1.  Hussey  v.  Hoine-Payne,  4  App.  483;  McElroy  v.  Buck,  35 
App.  Cas.  311;   Bristoe,  etc.,  Co.  v.        Mich.  434. 

Maggs,   44   Ch.   Div.   616;    Bellamy  4.  Townsend    v.    Kennedy,    6    S. 

V.  Debenham,  45  Ch.  Div.  481;  V'il-  Dak.  47,  60  N.  W.  164;  i.ee  v.  Ma- 

liams  V.  Smith,  161  Mass.  248,  37  honey,  9  Iowa,  348;  Myers  v.  Mun- 

N.  E.  455.  son,  65  Iowa,  425,  21   N.   W.  759; 

2.  Singleton  v.  Hill,  91  Wis.  51,  Beckwith  v.  Talbot,  95  U.  S.  289; 
64  N.  W.  588,  51  Am.  St.  Rep.  868;  Alson  v.  Sharpless,  53  Minn.  91,  55 
Bellamy  v.  Debenham,  45  Ch.  Div.  N.  W.  125;  Salmon  Falls  Manuf. 
481;  Pitcher  v.  Lowe,  95  Ga.  423,  Co.  v.  Goddard,  14  How.  (U.  S.) 
22  S.  E.  678 ;  Calverley  v.  Worth,  446,  456 ;  American  Oak  Leather  Co. 
59    111.  App.  553.  v.   Porter,   94  Iowa,  117,  62  N.  W. 

3.  Trevor  v.  Wood,  36  N.  Y.  307,  658. 

93  Am.  Dec.  511  and  note   ;   Little  5.  Boydell      v.      Drummond,      11 

V.   Dougherty,    11   Colo.   103,   17   P.       East,    142;     Coles    v.    Trecothic,    9 
292;   Whaley  v.  Hinchman,  22  Mo.       Ves.  250;   Eidgeway  v.  Wharton,  6 

108 


Cll.    4:  STATUTE    OF    FRAUDS.  §§    85,  86 

all  of  which  may  be  telegrams  f  but  such  documents  must  show 
clearly  what  the  contract  is,  and  are  so  connected  with  each 
other  that  they  may  fairly  be  said  to  constitute  one  paper  re- 
lating to  the  contract.' 

Filing  a  bill  in  chancery  by  a  party  who  has  not  signed  tho 
contract,  takes  the  case  out  of  the  statute  of  frauds.^ 

The  signature  of  the  telegram-form  amounts  to  and  operates 
as  a  signature  of  the  contract  contained  in  the  contract,  and  is 
valid  under  the  statute  of  frauds.®  And  it  is  believed  that  the 
use  of  the  sender's  telegraphic  sobriquet,  in  lieu  of  his  own  or 
his  firm's  name,  would  make  no  difference,  and  would  be  valid 
under  the  statute  of  frauds.  The  question  is,  whether  a  telo- 
gram  is  or  is  not  a  sufiicient  memorandum  within  the  statute; 
the  courts  universally  say  it  is. 

§  86.  Evidence  of  contract. —  It  is  the  general  rule  that  the 
evidence  necessary  to  take  a  contract  out  of  the  statute  of  frauds 
must  be  furnished  by  the  writings,  parol  evidence  not  being 
admissible  to  supply  evidence  found  in  them.^°  The  memo- 
randum required  by  the  statute  must  show,  either  on  its  face  or 
by    reference  to  some  other  writing,  the  contract  between  the 

H.  L.  Cas.  237;  Blair  v.  Snodgrass,  States,  136  U.  S.  68,  10  S.  Ct.  913; 

1  Sneed    (Tenn.),  1;   Fowler  Eleva-  Beckwith  v.   Talbot,   95   U.   IS.   289, 

tor  Co.  V.  Cottrell,  38  Neb.  512,  57  29z;      Ridgeway  v.  Wharton,  6  H. 

N.    W.    19;    Boardman   v.    Spooner,  L.  Cas.   238;    Coles  v.  Treeotluc,  9 

13  Allen   (Mass.),  353,  90  Am.  Dec.  Ves.   234,   250;    Cave  v.      Hastings, 

196;     Carter    v.    Shorter,    57    Ala.  7  Q.  B.  D.  125,  128;  Long  v.  Millar, 

256;   Brown  v.   Whipple,  58  N.  H.  4  C.  P.  D.  450. 

229;  North  v.  Mendel,  73  Ga.  400;  8.     Peevey  v.  Haughton,  72  Miss. 

54    Am.    Rep.    879;     Ridgeway    v.  918,  17  So.  378,  18  So.  357,  48  Am. 

Ingram,  50  Ind.   145,  19  Am.  Rep.  St.  Rep.  592. 

706;  Johnson  v.  Buck,  3'5  N.  J.  L.  9.  Godwin  v.   Francis,   22   L.   T. 

338,    10   Am.   Rep.   243;    Thayer  v.  Rep.   338,  L.   R.  5   C.  P.  295;   Mc- 

Luce,  22  Ohio  St.  62;  Tice  v.  Free-  Blain  v.  Cross,  25  L.  T.  Rep.  804. 

man,  30  Minn.  389,  15  N.  674.  10.  Watt   v.    Cranberry    Co.,    63 

6.  Breckenridge  v.  Crocker,  78  Iowa,  730,  18  N.  898;  Vaughn  v. 
Cal.  534.  21  P.  179;  Ryan  V.  United  Smith.  58  Iowa,  558,  12  N.  604; 
States,  136  U.  S.  68,  10  S.  Ct.  913.  Compare  Salmon  Falls  Manuf.  Co. 

7.  Elbert  v.  Gas  Co.,  97  Cal.  v.  Goddard,  14  How.  (U.  S.)  446. 
244,    32    P.    9;     Ryan    v.    United  456. 

109 


§§    86,  87  FREEDOM    OF    CONTRACT.  Ch.    4 

parties,  so  that  it  can  be  understood  without  having  recourse  to 
parol  proof  ;^^  and  it  must  contain  the  essential  elements  of  the 
contract,  including  the  consideration,^^  except  in  some  States 
the  consideration  need  not  be  expressed." 

The  relation  to  each  other  of  the  documents  relied  on  to 
satisfy  the  requirements  of  the  statute  must  appear  on  their  face 
and  cannot  be  established  by  parol  evidence.^* 

§  87.  Sale  by  auctioneer  or  broker  —  Sufficiency  of  memo- 
randum.—  An  auctioneer  is  to  be  ordinarily  treated  as  agent  of 
both  seller  and  purchaser  of  either  real  or  personal  property 
sold  by  him,  and  a  memorandum  of  the  sale  signed  by  him  is  a 
sufficient  written  memorial  of  the  contract  to  bind  both  parties.^ 
But  the  memorandum  of  a  sale  of  land  must  show  who  the 
vendor  is.^  The  auctioneer's  authority  to  sign  cannot  be  dele- 
gated to  others  f  though  he  may  authorize  another  to  make  the 
outcry  and  the  swinging  of  the  hammer.*  The  signing  of  the 
memrandum  by  the  auctioneer  must  be  at  the  time  of  the  sale, 
and  cannot  be  made  at  a  future  time.^  These  rules  apply  to  a 
broker.® 

If  the  vendor  is  the  auctioneer,  the  rules  applicable  to  an 

11.  Parkhurst  v.  Van  Cortland,  Y.  491,  25  N.  E.  1044,  11  L.  R.  A. 
1  Johns.  Cli.  (N.  y.)  273;  Williams  97  and  note,  19  Am.  St.  Rep.  514, 
V.  Morris,  95  U.  S.  444;  Hale  v.  0  Sullivan  v.  Overton,  56  Conn. 
Hale,  90  Va.  728,   19  S.  E.  739.  102,  14  A.  300. 

12.  Grafton  v.  Cummings,  99  U.  3.  Stone  v.  State,  12  Mo.  400; 
S.  100.  Commonwealth      v.      Hamden,      19 

13.  Hale  v.  Hale,  90  Va.  728,  19  Pick.   (Mass.)   482. 

S.  E.  739.  4.  Commonwealth  v.  Hamden,   19 

14.  Fowler  Elevator  Co.  v.   Cot-        Pick.   (Mass.)   482. 

trell,  38  Neb.  512,  57  N.  W.  19.  5.  Gill     v.      Bicknell,      2      Cush. 

1.  Moore  v.  Taylor,  81  Md.  644,  (Mass.)  355;  Horion  v.  McCarty, 
32  A.  320,  33  A.  886;  Bent  v.  Cobb,  53  Me.  394;  Bawber  v.  Savage,  52 
9  Gray  (Mass.),  397,  69  Am.  Dec.  Wis.  110,  8  N.  609,  38  Am.  Rep. 
295;  McBrazer  v.  Cohn,  92  Ky.  479,  723;  Jelks  v.  Barrett,  52  Miss.  515; 
18  S.  W.  123;  Gill  V.  Hewitt,  Gwathney  v.  Cason,  74  N.  Car.  5, 
7  Bush.   (Ky.)    10,  Sims  v.  Landray  21  Am.  Rep.  484. 

U894)-,  2  Ch.  318.  6.  Rucker   v.   Cammeyer,    1    Esp. 

2.  Mentz    v.    Newmiller,    122    N".        105. 


110 


Ch.    4  STATUTE    OF    FRAUDS.  §§    87,  88 

auctioneer  do  not  apply/  And  so  where  the  auctioneer  departs 
before  making  a  sale,  and  the  vendor  sells  to  a  bidder,  the  clerk 
of  the  sale  is  not  the  agent  of  the  purchaser,  so  that  he  can  bind 
him  by  a  memorandum.* 

Del  credere  is  where  the  agent  or  factor,  in  consideration  of  an 
increase  of  commission,  absolutely  engages  to  pay  to  his  prin- 
cipal the  price  of  the  goods  which  he  sells  for  his  consignor.' 
Such  a  contract  is  original  contract,  and  absolute  agreement 
that  the  price  for  which  the  goods  were  sold,  or  the  debt  created 
by  the  sale  of  the  goods,  shall  be  paid  to  the  principal  when  the 
credit  given  on  the  sale  shall  have  expired.^" 

The  principal  transfers  a  right  in  his  own  name  to  collect  the 
debts  and  hold  the  money,  accounting  only  for  the  net  proceeds ; 
but  this  does  not  come  under  the  statute  of  frauds."  Some 
English  cases^^  and  a  few  American  cases  hold  that  the  factor's 
liability  is  as  a  surety  merely,  and  his  contract  of  guaranty 
comes  within  the  statute.  But  the  great  weight  of  American 
authority  is  to  the  effect  that  one  who  sells  under  such  a  com- 
mission is  liable  absolutely  and  originally  to  the  principal,  or 
consigTior,  and,  hence,  the  contract  does  not  come  within  the 
statute  of  frauds.^^ 

§  88.  Description  of  parties. —  It  is  essential  to  the  validity 
of  an  agreement  or  memorandum  thereof,  that  it  shall  contain 
the  names  of  both  parties  to  the  agreement.    It  is  not  necessary, 

7.  Bent  v.  Cobb,  9  Gray  (Mass.),  man,  6  Mo.  App.  384;  Wickham  v. 
397,  69  Am.  Dec.  295.  Wickham,  2  Kay  &  J.  478;   Grover 

8.  Wyekoflf  V.  Mickle  (N.  J.),20  v.  Dubois,  1  T.  R.  112;  Bize  v. 
At.  Rep.  214.  Dickanson,  1  T.  R.  285. 

9.  Xat.  Cordage  Co.  v.  Sims,  44  11.  Sherwood  v.  Stone,  14  N.  Y, 
Keb.  148,  62  N.  W.  514.  267. 

10.  Bradley    v.    Richardson,    23  12.  Morris   v.   Cleasby,   4  Maul. 

Vt.  720;  Swan  v.  Nesmith,  7  Pick.  &,   Sel.   566;    Peele  v.  Northcote,  7 

(Mass.)  220,  19  Am.  Dec.  282;  Bui-  Taunt.  478. 

lowav.Orga,  57  N.  J.  Eq.  428,  41  A.  13.  Balderston  v.  Rubber  Co.,  18 

494;   Courturier  v.  Hastie,  8  Exch.  R.   I.   338,  27   A.   507,   49   Am.   St. 

40;  Wolff  V.  Kappel.  5  Hill   (N.  Y.),  Rep.  772;  Lewis  v.  Brehm,  33  Md. 

458;    Osborne   v.    Baker,    34   Minn.  112. 
307,  25  N.  W.  606;   Seeman  v.  In- 
Ill 


§§    88,  89  FREEDOM    OF    CONTRACT.  Cll.    4: 

however,  that  both  parties  shall  sign  it;  all  that  is  required  is 
that  it  shall  be  signed  by  the  party  to  be  charged.^  So  a  memo- 
randum in  the  sale  of  real  estate  which  does  not  contain  the 
name  of  the  purchaser  or  any  description  of  him  whatever  is 
insufficient  within  the  statute.^  So  a  memorandum  of  the  sale 
of  goods,  which  does  not  designate  the  seller  and  the  buyer,  is 
insufficient.^  The  parties  must  be  described  with  reasonable 
certainty.'*  The  ratio  decidendi  is  that  the  language  of  the  stat- 
ute cannot  be  satisfied  unless  the  existence  of  a  bargain  or  con- 
tract appears,  evidenced  in  writing,  and  a  bargain  or  contract 
cannot  so  appear  unless  the  parties  to  it  are  specified  therein 
nominally  or  by  a  description  or  reference.^ 

§  89.  Evidence  to  identify  parties. —  It  is  essential  that  the 
memorandum  shall  show  the  parties.  It  is  true  that  they  need 
not  be  named.  It  is  sufficient  if  they  are  described,  and  in  that 
case,  parol  evidence  is  admissible  to  apply  the  description  and 
identify  the  persons  meant.^  In  the  absence  of  description, 
parol  evidence  is  not  admissible  to  describe  the  parties  intended.^ 

1.  Williams  v.  Lake,  2  El.  &  El.  Cummings,  99  U.  S.  100;  Lincoln 
349;  Sherbourne  v.  Shaw,  1  N.  H.  v.  Preserving  Co.,  132  Mass.  129; 
157,  8  Am.  Dec.  47 ;  Nichols  v.  Vandenburgh  v.  Spooner,  L.  R.  1 
Johnson,  10  Conn.  192;  Osborn  v.  Exch.  316;  Fessenden  v.  Mussey,  11 
Phelps,  19  Conn.  63,  48  Am.  Dec.  Cush.  (Mass.)  127;  Coddingham  v. 
133;  Bailey  v.  Ogden,  3  Johns.  (N.  Goddard,  16  Gray  (Mass.),  436, 
Y.)    399,  3  Am.  Dec.  509.  444;  McConnell  v.  Brillhart,  17  111. 

2.  Carriek  v.  Mincke,  1  Mo.  App.  354,  65  Am.  Dec.  661  and  note;  Mc- 
Eep.  67;  Lewis  v.  Wood,  153  Mass.  Elroy  v.  Seery,  61  Md.  389,  48  Am. 
321,  26  N.  E.  862,  11  L.  R.  A.  143.  Rep.      110;      Coombs      v.      Wilkes 

3.  Frank  V.  Eltringham,  65  Miss.  (1893),  3  Ch.  77;  Sherburne  v. 
281,  3  So.  665;  Bailey  v.  Ogden,  3  Shaw,  1  N.  H.  157,  8  Am.  Dec.  47; 
Johns.  (N.  Y.)  399,  3  Am.  Dee.  Watt  v.  Cranberry  Co.,  63  Iowa, 
509;    Compare   Thornton   v.    Kelly,  730,  18  N.  898. 

11  R.  I.  498.  5.  Williams  v.  Byrnes,  1  Moore, 

4.  Champion  v.  Plummer,  1  Bos.       P.  C,  N.  S.  154,  195. 

&   Pul.    (N.   C.)    25'2;    Williams   v.  6.  Jones  v.  Dow,   142  Mass.   130, 

Byrnes,    1    Moore,    P.    C,    N.    S.  140,  7  N.  E.  839;   Catling  v.  King, 

154;  McGovern  v.  Hern,  153  Mass.  5  Ch.  D.  660;  Rossiter  v.  Miller,  3 

308,  26  N.  E,  861,  10  L.  R.  A.  875,  App.  Cas.  1124,  1141,  5  Ch.  D.  648. 

25   Am.    St.   Rep.   632;    Grafton  v.  7.  Sale   v.    Lambert,    18    Eq.    1; 

112 


Ch.    4  STATUTE    OF    FRAUDS.  §§    89,  90 

And  the  mere  reference  to  a  person  selling  as  vendor  is  no  de- 
scription.^ 

A  signature  is  valid  and  binding,  though  made  v^^ith  the  in- 
itials of  the  party  only,  as  parol  evidence  is  admissible  to  ex- 
plain and  apply  tliem.^  And  parol  evidence  is  competent  to 
show  who  the  principal  is,  when  a  factor  has  used  a  fictitious 
name  in  selling  goods. ^"^  The  parties  must  either  be  named  or 
described  in  the  memorandum  in  order  to  bind  them ;  if  not 
named  but  described,  then  parol  evidence  may  be  admitted  to 
identify  them. 

§  90.    Parol  evidence  to  identify  agent  or  principal. — •  It  is 

no  objection  to  the  sufficiency  of  a  memorandum  that  the  seller 
therein  named  is  but  an  agent  or  the  real  owner;  and  on  proof 
of  the  agency  the  latter  may  sue  or  be  sued  on  the  contract  mad© 
by  his  agent.^^  So  it  is  a  sufficient  compliance  T\dth  the  statute 
that  the  contract  to  convey  land  be  signed  by  one  who  is  proved 
or  admitted  to  have  been  authorized  to  execute  it  by  the  party 
to  be  charged  therewith,  although  the  ageut  signed  his  own 
name  instead  of  that  of  his  principal,  and  the  authority  of  the 
agent  may  be  shown  by  parol. -^^  But  such  agent  cannot  show  by 
parol  that  he  is  not  the  principal  to  the  contract."    A  subscrip- 

Jones  V.  Dow,  142  Mass.   130,  140;  11.  Gowen   v.   Klous,    101    Mass. 

Violett  V.  Powell,  10  B.  Mon.  (Ky.)  449. 

347,  52  Am.  Dec.  548;  Thornton  v.  12.  Hargrave  v.  Adcock,   111  N. 

Kelly,    11    R.    I.    498;     Lerned    v.  Car.    166,    16   S.   E.    16;    Hippes   v. 

Johns,  9  Allen   (Mass.),  419.  Griffin,  89  III.  134,  31  Am.  Dec.  71; 

8.  Catling  v.  King,  5  Ch.  D.  660,  Mantz  v.  Maguire,  52  Mo.  App. 
665.  136;    Williams    v.    Bacon,    2    Gray 

9.  Phillimore  v.  Barry  ,1  Camp.  (Mass.),  387;  Sanborn  v.  Flagler, 
513;  Salmon  Falls  Manuf.  Co.  v.  9  Allen  (Mass.),  477;  Trueman  v. 
Goddard,  14  How.  (U.  S.)  446;  Loder,  11  Adol.  &  El.  589.  See, 
Sanborn  v.  Flagler,  .  9  Allen  also,  Wilson  v.  Hunter,  7  Taunt. 
(Mass.),  474;  Palmer  v.  Stephens,  275;  Cox  v.  Painter,  6  Ad.  &  El. 
1  Denio   (N.  Y.),  471.  491.  Compare  Repetti  v.  Maisak,  6 

10.  Bibb  V.  Allen,  149  U.  S.  481,  Mackey  (D.  C),  3'66;  Ciampet  v. 
13  S.  Ct.  950;  Compare  Newcomb  Bells,  39  Minn.  272,  39  N.  W.  495. 
V.  Clark,  1  Denio  (N.  Y.),  226;  13.  Higgins  v.  Senior,  8  Mees.  & 
Minard  v.  Mead,  7  Wend.  (N.  Y.)  Wels.  834;  Waring  v.  Mason,  18 
68.  Wend.    (N.  Y.)    425. 

113 


§§    90,  91  FREEDOM    OF    CONTRACT.  Cll.  ,4 

tion  bj  an  agent  of  the  party  to  be  charged  is  sufficient  under  the 
statute,  though  the  name  or  existence  of  a  principal  does  not  ap- 
pear upon  the  instrument.^"*  On  the  same  principle  a  partner 
may,  by  his  individual  signature,  bind  the  firm  if  the  contract 
is  within  the  scope  of  the  business  of  the  firm,  which  may  be 
shown  by  extrinsic  evidence.^^ 

§91.  Terms  of  the  memorandum. —  In  order  to  satisfy  the 
statute  of  frauds,  the  memorandum  must  contain  the  substantial 
terms  of  the  agreement,  expressed  with  such  certainty  that  they 
may  be  understood  without  resort  to  parol  evidence.^ 

ISTo  particular  form  is  required  so  long  as  it  states  the  terms 
with  reasonable  certainty.^  Under  the  statute  of  frauds,  if  the 
subject-matter  of  the  contract  is  within  the  statute,  and  the  con- 
tract or  memorandum  is  defective  in  some  one  or  more  of  the 
essentials  required  by  the  statute,  parol  evidence  cannot  be  re- 
ceived to  supply  the  defects,  for  this  would  do  the  very  thing 
prohibited  by  the  statute.^  And  if  the  memorandum  refers  to 
additional  terms  agreed  on  between  the  contracting  parties,  its 
terms  not  being  evidenced  by  writing  but  left  in  parol,  it  is  in- 
sufficient.*   And  so  if  the  time  for  delivery  of  goods  be  fixed  in 

14.  Dykers  V.  Townsend,  24  N.  Y.  !S.  100;  Ringer  v.  Hoitzclaw,  112 
57.  Mo.  519,  20  S.  W.  800. 

15.  Soaraes  v.  Spencer,  1  Dowl.  &  2.  Atwood  v.  Cobb,  16  Pick. 
R.  32;  Higgins  v.  Senior,  8  Mees.  (Mass.)  230,  26  Am.  Dec.  657  and 
&  Wels.  834;  Williams  v.  Bacon,  2  note;  Gordon  v.  Avery,  102  N.  Car. 
Gray   (Mass.),  387,  393.  532,  9   S.   E.   486;   Peck  v.   Vande- 

1.  Messmore    v.    Cunnington,    78  mark,  99  N.  Y.  29,  1  N.  E.  41. 
Mich.  623,  44  N.  W.  145;   Smith  v.  3.  Musselman   v.    Stover,   31   Pa 

Shell,    82    Mo.    215,    52    Am.    Eep.  St.    265;     Gloss    v.    Hurlbert,    10! 

365;   North  v.  Mendel,  73  Ga.  400,  Mass.  24,  3  Am.  Rep.  418;   Mould 

54  Am.  Rep.  879;   Fry  v.  Piatt,  32  ing  v.  Prussing,  70  111.  151;  Osbori^ 

Kan.  62,  3  P.  781;  Williams  v.  Rob-  v.  Phelps,  19  Conn.  63,  48  Am.  Dec. 

inson,    73    Me.    186,    40    Am.    Rep.  133;   Ringer  v.  Hoitzclaw,   112  Mo. 

352;    Lee    v.    Hills,    66    Ind.    474;  519,  20  S.  W.  800,  overruling  O'Neil 

Banks  v.  Manuf.  Co.,  20  Fed.  Rep.  v.   Cram,  67  Mo.  250,  and  Lash  v. 

667;   Williams  v.  Morris,  95  U.  S.  Parlin,  78  Mo.  391. 
444;    Grafton  v.   Cummings,   99   U.  4.  Lester   v.   Hefdt,    86   Ga.   226, 

12  S.  E.  214,  10  L.  R.  A.  108. 


114 


Ch.    4  STATUTE    OF    FRAUDS.  §§    91,  92 

the  verbal  agroement  of  sale,  such  time  must  be  incorporated  in 
the  memoranclnra.^  So  the  agreement  for  the  sale  of  land,  not 
specifying  the  purchase  price,  nor  the  time  or  times  of  pay- 
ment, is  not  sufficient.®  When  not  made  unnecessary  by  the 
statute,  the  price  must  be  stated  in  the  memorandum  of  sale,' 
unless  an  adequate  price  has  been  paid,^  or  such  is  not  required 
by  statute.^ 

Parol  evidence  is  not  admissible  to  prove  any  substantial 
requirement  of  the  memorandum.^"  But  the  agreement  required 
by  the  statute  may  sufficiently  appear  in  a  receipt  signed  by  the 
defendant." 

§  92.  Description  of  subject-matter. —  The  description  of 
the  subject-matter  must  be  such  as  to  be  easily  understood,  so  as 
to  identify  the  property.^  A  description  of  the  sale  of  real  es- 
tate is  sufficient  which  gives  the  owner's  name,  the  street  and 
number  of  the  lot ;  the  omission  of  the  name  of  the  city  or  town 
in  which  the  lot  is  located,  is  not  material  f  but  if  the  owner's 
name  had  not  been  given,  the  memorandum  would  have  been 
insufficient.^ 

Yv^here  the  description  of  the  land  is  defective,  but  is  suffi- 
ciently full  for  easy  identification,  the  memorandum  is  suffi- 
cient.^ 

5.  Kreith  v.  Myer,  61  Md.  558.  183;   Weil  v.  Willard,  55  Mo.  App. 

6.  Webster  v.  Brown,  67  Mich.  370;  Boyd  v.  Paul,  125  Mo.  9,  28 
328,  34  N.  W.  676;  Gault  v.  Storm-       y.  W.  171. 

out,  51  Mich.  636,  17  N.  214;   Mc-  11.  Lewis   v.   Eeichey,   27    N.   J. 

Elroy  V.  Buck,  35  Mich.  434.     See,  Eq.  240;  Jones  v.  Tye,  93  Ky.  390, 

also,  Elliott   V.   Barrett,    144  Mass.  20  S.  W.  388. 

256,  10  N.  E.  820.  1.  Beekman  v.  Fletcher,  48  Mich. 

7.  Phelps  V.  Stillings,  60  N.  H.  555,  12  N.  37;  Whelan  v.  Sullivan, 
505;  Phillips  v.  Adams,  70  Ala.  102  Mass.  204;  Ellis  v.  Railroad 
373;  Ide  v.  Stanton,  15  Vt.' 68.  Co.,  7  Colo.  App.  350,  43  P.  457. 

8.  Sayward  v.  Gardner,  5  Wash.  2.  Price  v.  McKay,  53  K.  J.  Eq. 
247,  31  P.  761,  33  P.  389.  588,  32  A.  130. 

9.  Hale  v.  Hale,  90  Va.  728,  19  3.  Ross  v.  Allen,  45  Kans.  231, 
S.  E.  739.  25  P.  570,  10  L.  R.  A.  835. 

10.  Oppenheim  v.  Waterbury,  4.  Ellis  v.  Deadman,  4  Bibb 
86  Hun    (N.  Y.),  122,  33  X.  Y.  S.        (Ky.),    467;    Hanly    v.    Blackford, 

115 


§§    92,  93  FREiEDOM    OF    CONTKACT.  Ch.    4 

If  the  subject-matter  cannot  be  identified  by  the  terms  of  the 
memorandum,  it  is  insuflScient.^  Where  two  tracks  of  land 
answer  the  description,  the  memorandum  is  insujfficient  as  parol 
testimony  cannot  be  admitted  to  identify  the  land.®  But  when 
the  memorandum  identifies  and  furnishes  the  means  of  finding 
the  land,  it  is  suiRcientJ 

An  agreement  in  writing  for  the  conveyance  of  land,  which 
does  not,  either  in  itself  or  by  reference  to  any  other  writing, 
contain  the  means  of  identification  of  the  boundaries,  is  within 
the  statute,  and  is  therefore  insufficient.^ 

§  93.  Consideration. — ^The  statute  of  frauds  in  the  various 
States  are  not  alike  as  to  whether  the  consideration  must  be 
expressed  in  the  memorandum.  Many  of  the  statutes  set  forth 
that  the  consideration  of  a  promise,  contract  or  agreement  need 
not  set  forth  or  be  expressed  in  the  vsrriting  signed  by  the  party 
to  be  charged  therewith.^  This  is  the  law  in  Illinois,  Indiana, 
Kentucky,  Maine,  Massachusetts,  Michigan,  Nebraska,  New 
Jersey,  Virginia,  and  West  Virginia. 

1  Dana  (Ky.),  1,  25  Am,  Dec.  114;  S.   W.    388;    Doherty   v.    Hill,    144 

Anderson  v.  Perkins,  94  Ky.  207,  21  Mass.  465,  11  N.  E.  581. 

S.  W.  1035;  Mellon  v.  Dawson,  123  7.  Eggleston  v.  Wagnor,  46  Mich. 

Pa.  St.  298,   16  A.  431;   Cassitt  v.  610,    10   N.   37;    Hobison  v.   Horn- 

Hobbs,   56   111.    231;    Dougherty  v.  baker,   3   N.   J.   Eq.   60;    White  v. 

Chestnutt,  86  Tenn.  1,  5  S.  W.  444;  Hermann,  51  111.  243,  99  Am.  Dec. 

Oliver  v.  Hunting,  44  Ch.  D.  205;  543;   Lento  v.  Clarke,  22  Fla.  515, 

Humber    v.    Brisbane,    25    S.    Car.  1   So.   149;   Phillips  v.  Swank,  120 

506;    Breckenridge    v.    Crocker,    78  Pa.   St.   76,   13  A.   712,  6  Am.  St. 

Cal.     529,    21     P.     179;     Quinn    v.  Rep.    691;     Frances    v.    Barry,    69 

Champagne,    38   Minn.    322,    37    N.  Jlich.  311,  37  N.  W.  353. 

W.  451.  8.  Atwood     v.     Cobb,     16     Pick. 

5.  Weil  V.  Willard,  55  Mo.  App.  (Mass.)  227,  26  Am.  Dec.  657  and 
376;  Doherty  v.  Hill,  144  Mass.  note;  Morton  v.  Dean,  13  Met. 
465,  11  N.  E.  581;  Taylor  v.  Allen,  (Mass.)    385;   Hurley  v.  Brown,  98 

40  Minn.  433,  42  N".  W.  292 ;  Lowe  Mass.  545 ;  Whelan  v.  Sullivan,  102 
V.  Harris,  112  N.  Car.  472,  17  S.  E.  Mass.  204;  White  v.  Breen,  106 
539,  22  L.  R.  A.  379  and  note;  Ala.  759,  19  So.  59;  Lingeman  v, 
Brockway   v.   Frost,   40   Minn.   155,  Shirk,   15  Ind.  App.  432,  43  N.  E. 

41  N.  W.  411;  Repetti  v.  Maisak,  6  33. 

Mackey   (D.  C),  366.  9-  Haye«   v.   Jackson,    159   Mass. 

6.  Jones  V.   Tye,  93  Ky.  390,  20        451,  34  N.  E.  683;   Compare  Grace 

116 


Ch,    4  STATUTE    OF    FBAUDS.  §§    93,  94 

It  has  been  held  in  England  that  the  promise  is  not  binding 
under  the  statute  unless  the  consideration  which  forms  part  of 
the  agreement  be  also  stated  in  writing/" 

But  the  old  English  doctrine"  has  been  changed  by  statute/^ 
because  it  was  found  in  practice  that  it  led  to  many  unjust  and 
merely  technical  defences  to  actions  upon  guaranties.  In  some 
of  the  States  it  has  been  held  unnecessary  to  state  the  considera- 
tion, even  when  there  is  no  provision  that  it  need  not  be  inserted 
in  the  memorandum,  although  the  consideration  was  executory." 

§  94.  For  value  received. —  It  has  been  repeatedly  held  that 
the  words  "  for  value  received  "  sufficiently  comply  with  the 
statute  which  requires  the  consideration  to  be  expressed.^  Hence, 
the  words  "  for  value  received  "  are  a  sufficient  statement  of  the 
consideration  in  a  written  guaranty  of  the  payment  of  a  bond 
and  mortgage  to  constitute  a  valid  contract  under  the  statute.' 
The  former  rule  in  New  York,  that  contracts  of  guaranty  are 
void  under  the  statute  unless  their  consideration  ^vas  expressed 
upon  the  face  of  the  instrument  itself,^  has  been  modified,  and 

V.  Denison,  114  Mass,  16.     See,  also,  1.  Day   v.    Elmore,   4    Wis.    214; 

Siemens  v.   Siemens,  65  Minn.   194,  Watson  v.  McLarin,  19   Wend.    (N. 

60    Am.    St.    Rep.    430    and    note;  Y.)    557;   Miller  v.  Cook,  23  N.  Y. 

Straight  v.   Wright,  60  Minn.   515,  495;    Osborne   v.    Baker,    34    Minn. 

63  N.  W.  103.  307,  25  N.  W.  606,  57  Am.  Rep.  55; 

10.  Wain  V.  Walters,  5  East,  10;  Brooks  v.  Morgan,  1  Har.  (Del.) 
Deutsch  V.  Bond,  46  Md.  164;  Buck-  123;  Whitney  v.  Stearns,  16  Me. 
ley  V.  Beardsiey,  5  N.  J.  L.  572,  8  394;  Johnson  v.  Wadsworth,  24 
Am.  Dec.  620;  Taylor  v.  Pratt,  3  Oreg.  494,  34  P.  13;  Smith  v. 
Wis.  674;  Ellison  v.  Jackson  Water  Xorthrup,  80  Hun  (N.  Y.),  G5,  29 
Co.,  12  Cal.  542;  Thompson  v.  Blan-  X.  Y.  S.  851;  Drake  v.  Seaman,  97 
chard,  3  N.  Y.  335;  Hargraves  v.  X.  Y.  230;  Emerson  v.  Aultman, 
Cooke,  15  Ga.  321.  60  Md.  125. 

11.  Wain  V.  Walters,  5  East,  10.  2.  Smith    v.    Xorthrup,    80    Hun 

12.  19  and  20  Vict.  c.  97,  sec.  3;  (X.  Y.),  65,  29  X.  Y.  S.  851. 

In  re  Eyre,  13  Reports,  670.  3.  Union    Bank   v.    Coster,   3   N. 

?3.  Camp    V.    Moreman,    84    Ky.  Y.  211.  53  Am.  Dec.  280  and  note; 

635,  2  S.  W.  179;  Violett  V.  Patton,  Xewcomb    v.    Clark,    1    Denio     (N. 

5    Cranch     (U.    S.),    142;    Ellis   v.  Y.),  226. 
Bray,    79    Mo.    227;    Thornburg   v. 
Masten,  88  X.  Car.  293. 

117 


§§    94:,  U5,  9G  FKEEDOM    OF    CONTRACT.  Ch.    4 

where  the  nature  of  the  consideration  is  fairly  inferable  from 
the  contract,  it  will  satisfy  the  requirements  of  the  statute.* 
And  this  is  the  law  in  other  States.  It  is  sufficient  if,  from  the 
writing  it  appears  with  reasonable  clearness  what  the  considera- 
tion is.^ 

§  95.  Seal  —  Consideration. —  A  seal  is  a  sufficient  expres- 
sion of  the  consideration,  when  the  statute  of  frauds  requires  an 
agreement  or  memorandum  for  sale  of  lands  to  express  a  con- 
sideration.^ An  instrument  under  seal  is  held  not  void  under 
the  statute,  although  no  consideration  is  in  terms  stated  therein, 
upon  the  ground  that  the  seal  imports  consideration.'^  A  cove- 
nant under  seal  is  not  within  the  statute  requiring  agreements 
to  be  in  writing  expressing  the  consideration.^ 

§  96.  Guaranty  —  Consideration. —  In  many  of  the  States, 
as  Alabama,  Minnesota,  ISTevada,  and  Oregon,  a  consideration 
expressed  is  necessary.  That  is,  the  consideration  must  appear 
with  reasonable  clearness.^  So  a  guaranty  of  a  note,  under  such 
doctrine,  written  by  a  third  person  on  the  note  before  delivery, 
need  not  express  a  consideration,  since  the  guaranty  requires  no 
other  consideration  than  that  which  the  note  or  its  face  implies 
to  have  passed  between  the  original  parties,  but  it  is  otherwise 
if  the  guaranty  is  written  after  the  note  has  been  delivered 
and  taken  effect  as  a  contract.^ 

Where  the  nature  of  the  consideration  for  the  guarantor's 
undertaking  is  fairly  inferable  from  the  written  provision  of 

4.  Smith  V.  Northrup,  80  Hun  Howland,  24  Wend.  (N.  Y.)  45; 
(N.  Y.),  65,  29  N.  Y.  S.  581;  Gates  Barnum  v.  Childs,  3  Super.  Ct.  (N. 
V.   McKee,    13   N.   Y.   232,   64   Am.T  Y.)   58. 

Dec.  545;   Church  v.  Brown,  21  N._        7.  McKenzie  v.   Farrell,  4  Bosw. 

Y.   315;    Douglass   v.   Howland,  24:p:  (N.  Y.)  207. 

Wend.   (N.  Y.)   35.  B^Z     8.  Smith    v.    Northrup,    80    Hun 

5.  Straight  v.    Wight,    60   Minn.^(N.  Y.),  65,  29  N.  Y.  S.  851. 

515,  63  N.  W.  105;  Hayes  v.  Jack-|^;  1.  Straight  v.  Wight,  60  Minn, 
son,  159  Mass.  451,  34  N.  E.  683.     |^515,  63  N.  W.  105. 

6.  Johnston  v.  Wadsworth,  24  ^j  2.  Moses  v.  Lawrence  Co.  Bank, 
Oreg.    494,    34    P.    13;    Douglass   v.tZ  149  U.  S.  298,  13  S.  Ct.  900. 

118 


Ch.    4  STATUTE    OF    FRAUDS.  §    OG 

ffuarantv,  it  is  sufficient  iiuder  the  statute.'  When  the  contract 
is  merely  one  of  guaranty,  it  is  manifestly  within  the  terms  of 
the  statute,  and  the  contract  must  be  in  writing.  And  there 
must  be  a  principal  debtor,  and  the  promise  must  be  made  to 
the  creditor  to  whom  the  principal  debtor  has  already  or  is  there- 
after to  become  liable.  The  guarantor  must  agree  to  pay  if  the 
debtor  does  not,  and  the  promise  must  be  in  writing.'*  However, 
in  some  jurisdictions,  it  is  held  to  be  a  presumption  of  law, 
that  if  any  contract,  beneficial  to  the  guarantor,  is  the  object 
sought  to  be  obtained  by  his  promise,  he  must  be  understood  to 
intend  an  original  undertaking  which  is  not  within  the  statute.^ 
So  the  promise  to  pay  the  debt  of  an  infant,  made  upon  a  suffi- 
cient consideration,  is  a  promise  to  pay  the  debt  of  another  and 
must  be  in  writing  to  be  enforceable ;  the  doctrine  that  there 
was  no  debt  because  the  principal  debtor  was  a  minor,  cannot 
prevail.''  However,  some  courts  hold  that  in  case  of  a  guaranty 
of  a  person's  contract  who  is  incapacitated  to  contract,  the  guar- 
antor is  not  liable.  Because,  so  soon  as  the  incompetent  princi- 
pal sets  up  his  inability  to  make  the  contract,  the  debt  cannot  be 
collected  either  from  him  or  of  his  guarantor;  that  the  party 
guarantied  something  that  did  not  exist  and  hence  he  is  not 
liable.'^  But  under  this  rule  the  guarantor  would  become  liable 
on  an  original  undertaking,  and  he  is  therefore  liable  as  on  any 
other  debt  he  may  contract  f  and  the  rule  applied  to  the  guar- 
anty of  an  ultra  vires  contract.     It  is  void  and  cannot  be  en- 

3.  Smith  V.  Noiihrup,  80  Hun  Ala.  452;  Chapline  v.  Atkinson,  45 
(N.  Y.),  65,  29  JS.  Y.  S.  851.  See,  Ark.  67,  55  Am.  Rep.  531;  Lerch  v. 
also,  Ryde  v.  Curtis,  8  Dowl.  &  R.       Gallup,  67  Cal.  595,  8  P.  322. 

62;  Kennaway  V.  Trelevan,  5  Mees.  6.  Dexter  v.   Blanchard,   11   Met. 

&Wel.  493;  Newbury  v.  Armstrong,  (Mass.)    365;    Davis   v.   Statts,   43 

6  Bing.  201;  Button  v.  Padgett,  26  Ind.  103,  13  Am.  Rep.  382. 

Md.  228.  7.  King  v.  Summit,  73  Ind.  312, 

4.  Elder  v.  Warfierd,'7  H.  &  J.  38  Am.  Rep.  145;  Smith  v.  Hyde, 
(Md.)     391;     Birkmyr    v.    Darnell,  19  Vt.  54. 

Salk.  27;    Spear  v.  Bank,   156  111.  8.  Harris  v.   Huntbacfi,   1    Burr, 

555,  41  N.  E.  164.  373. 

5.  Westmoreland    v.    Porter,    75 


119 


§§    96,  97  FREEDOM    OF    CONTRACT.  Ch.    4 

forced  against  the  corporation,  but  the  original  promise  of  the 
guarantor  can  be  enforced  against  hiin.^ 

The  general  rule  is  that  fin  oral  promise  by  one  person  to  in- 
demnify another  for  becoming  a  guarantor  for  a  third  person  is 
not  within  the  statute,  and  need  not  be  in  writing,  for  the  as- 
sumption of  the  responsibility  is  a  sufficient  consideration  for 
the  promise.^**  But  there  is  another  line  of  cases  that  hold  that 
an  indemnity  contract  is  within  the  statute  and  must  be  in 
writing,  because  whenever  there  is  a  liability  in  existence,  a 
performance  of  which  by  the  debtor  will  put  an  end  to  liability 
upon  special  promise,  the  special  promise  amounts  to  a  promise 
to  pay  the  debt  of  another  and  must  be  regarded  as  collateral  to 
it,  and  therefore  it  comes  under  the  statute." 

§  97-  Signature. —  The  contract  must  be  signed  by  the  party 
to  be  charged  therewith,  or  some  other  person  thereunto  by  him 
lawfully  authorized.^  To  be  clearly  in  the  handwriting  of  the 
party  to  be  charged  is  not  sufficient.^  And  the  unsigned  memo- 
randum of  an  auctioneer  unconnected  by  annexation  or  refer- 
ence with  any  writing  duly  authenticated  by  the  signature  of 
the  party  sought  to  be  charged  or  his  duly  authorized  agent,  is 
not  a  part  of  the  memorandum  required  by  the  statute.^ 

While  the  writing  must  be  signed,  it  is  not  always  necessary 

9.  Drake  v.  Flewellen,  33  Ala.  1.  Brown  v.  Wliipple,  58  N.  H. 
106.                                                                 229;    Thiebaud    v.    Furniture    Co., 

10.  Jones  V.  Bacon,  145  N.  Y.  143  Ind.  340,  42  N.  E.  741;  San- 
446,  40  N.  E.  216;  Rose  v.  Wallen-  born  v.  Sanborn,  7  Gray  (Mass.), 
berg,  31  Oreg.  260,  44  P.  382;  Guild  142;  Washington  Ice  Co.  v.  Web- 
V.  Conrad  (1894),  2  Q.  B.  885;  ster,  62  Me.  341,  16  Am.  Rep.  462; 
Wildes  V.  Dudlow,  19  Eq.  198;  Guthrie  v.  Anderson,  47  Kan.  383, 
Pingrey  on  Suretyship  and  Guar.  28  P.  164;  McElroy  v.  Seery,  61 
382;    Resseter    v.    vVaterman,    151  Md.  389,  48  Am.  Rep.  llO. 

111.  109,  37  N.  E.  875.  2.  Champlin  v.  Parish,   11  Paige 

11.  May  V.  Williams,  61  Miss.  (N.  Y.),  405;  Selby  v.  Selby,  3 
125,  48  Am.  Rep.  80;  Bissig  v.  Brit-       Merv.  2. 

ton,  59  Mo.  204,  21  Am.  Rep.  379;  3.  Rafferty  v.   Lougee,  63   N.  H. 

Farrell  v.  Maxwell,  28  Ohio  St.  383,  54 ;    O'Donnell   v.   Lieaman,   43   Me. 

22  Am.  Rep.  393;  i\ugent  v.  Wolfe,  158,  69  Am.  Dee.  54;  Horton  v.  Mc- 

111  Pa.  St.  471,  4  A.  15.  Carty,  53  Me.  394;  Brown  v.  Whip- 

120 


Ch.  4 


STATUTE    OF    FRAUDS. 


97,98 


that  the  party's  name  shall  appear  at  the  end  of  the  contract, 
unless  he  must  subscribe  it.^ 


§  98.  Mutuality  of  agreement. —  Whether  the  agreement 
must  be  signed  by  both  parties,  in  order  to  bind  them,  is  a  dis- 
puted question.  The  cases  are  incapable  of  being  reconciled. 
A  large  and  respectable  class  holds  that  a  contract  which  the 
statute  of  frauds  declares  shall  not  be  valid  unless  in  writing  and 
signed  by  the  party  to  be  charged  therewith,  need  only  be  signed 
by  the  party  defendant  in  the  suit,  and  that  it  is  no  objection 
to  maintaining  such  suit  and  recovering  upon  the  contract  that 
the  other  party  did  not  sign  and  was  not  bound  by  the  terms.^ 
Another  and  equally  prominent  class  of  cases  holds  that  unless 
the  party  bringing  the  action  is  bound  by  the  contract  neither  is 
bound  because  of  the  want  of  mutuality.^ 


pie,  58  N.  H.  229;  Gardels  v.  Kloke, 
36  Neb.  493,  54  N.  W.  834;  Moore  v. 
Chenault,  29  S.  W.  140,  16  Ky. 
L.  Rep.  531;  Durham,  etc..  Im- 
provement Co.  V.  GfutLrie,  116  N. 
Car.  381,  21  S.  E.  952;  Howell  v. 
Shewell,  96  Ga.  454,  23  S.  E.  310, 
51  Am.  St.  Rep.  148. 

4.  New  England,  etc.,  Co.  v. 
Worsted  Co.,  165  Mass.  328.  43  X. 
E.  112,  52  Am.  St.  Rep.  516;  Tour- 
ret  V.  Cripps,  4B  L.  J.  Ch.  N.  S. 
567. 

1.  Smith's  Appeal,  69  Pa.  St. 
480;  Tripp  v.  Bishop,  56  Pa.  St. 
428;  Perkins  v.  Hadsell,  50  111. 
217;  Old  Colony  Railroad  Co.  v. 
Evans.  6  Gray  (Mass.),  31,  66  Am. 
Dec.  394;  Williams  v.  Robinson,  73 
Me.  186,  40  Am.  Rep.  353;  Love  v. 
Welch,  97  N.  Car.  200,  2  S.  E.  24; 
DuTliam,  etc.,  Improvement  Co.  v. 
Guthrie,  116  N.  Car.  381,  21  S.  E. 
952;  Jones  v.  Davis,  48  N.  J.  Eq., 
493,  21  A.  1035;  Cavanaugh  v.  Cas- 
selman,    88    Cal.    543,    26    P.    515; 


Hodges  V.  Kowiug,  58  Conn.  12,  18 
A.  979,  7  ju.  R.  A.  87;  Justice  v. 
Lange,  42  N.  Y.  493;  Morin  v. 
Martz,  13  Minn.  191;  Dliver  v.  Ins. 
Co.,  82  Ala.  417,  2  So.  445;  Gart- 
rell  V.  Stafford,  12  Neb.  545,  11  N. 
732,  11  Am.  Rep.  167;  Reuss  v. 
Picksley,  L.  R.  1  Exch.  342;  Cun- 
ningham V.  Williams,  43  Mo.  App. 
629;  Anderson  v.  Harold,  10  Ohio, 
399;  Douglass  v.  Spears,  2  Nott.  & 
McC.  (S.  Car.)  207,  10  Am.  Dec. 
588;  Shirley  v.  Shirley,  7  Blacki. 
(Ind.)  452;  Smith  v.  Neale,  2  C. 
B.,  N.  S.  67;  Clason  v.  Bailey,  14 
Jonhs.  (N.  Y.)  488;  Parton  v. 
Crofts,  16  C.  B.,  N.  S.  11;  Farwell 
V.  Lowther,  18  111.  252;  Cheney  v. 
Cook,  7  Wis.  413;  Vassault  v.  Ed- 
wards, 43  Cal.  458. 

2.  Lees  v.  Whiteomb,  3  Craig  & 
P.  289 ;  Sykes  v.  Dixon.  9  Ad.  &  El. 
693;  Krohn  v.  Bautz,  6g  Ind.  277; 
Stiles  V.  Mcaellan,  6  Colo.  89 ;  Wil- 
kinson v.  Ileavenrieh.  58  Mich.  574, 
26   N.   W.    139.   55   Am.    Rep.   708; 


121 


§§  98,  99 


FKJEEDOM    OF    CONTRACT. 


Ch.    4 


It  is  a  general  principle  in  the  law  of  contracts,  but  not  with- 
out exceptions,  that  an  agreement  entered  into  between  parties 
competent  to  contract,  in  order  to  be  binding,  must  be  mutual ; 
and  this  is  especially  so  when  the  consideration  consists  of 
mutual  promises.  In  such  cases,  if  it  appears  that  the  one  party 
never  was  bound  on  his  part  to  do  the  act  which  forms  the  con- 
sideration for  the  promise  of  the  other,  the  agreement  is  void 
for  want  of  mutuality.^ 

The  weight  of  authority  is  that  the  statute  of  frauds  is  satis- 
fied by  the  signature  to  the  contract  of  the  party  sought  to  be 
charged  only,  whether  the  suit  to  enforce  it  be  at  law  or  in  equity, 
and  whether  it  relates  to  the  sale  of  real  or  personal  estate.* 


§  99-  Signature  by  agent. —  The  party  to  be  charged  may  au- 
thorize a  signing  of  the  memorandum  by  his  agent.^  But  if  the 
agent  goes  beyond  his  authority,  his  signing  is  invalid.*^  In  the 
absence  of  a  statutory  provision  to  the  contrary,  the  authority  of 
an  agent  to  sign  the  memorandum  may  be  verbal.^  In  some 
States,  contracts  relating  to  land  require  that  the  agent's  au- 


Corbett  v.  Gaslight  Co.,  6  Greg.  405, 
25  Am.  Rep.  541  and  note;  Thomas 
V.  Trustees,  3  A.  K.  Marsh.  (Ky.) 
298,   13  Am.  Dec.   1G5. 

3.  Hopkins  v.  Logan,  5  Mees.  & 
Wei.  241;  Dorsey  v.  Packwood,  12 
How.  (U.  S.)  126;  Ewins  v.  Gor- 
don, 49  N.  H.  444;  Hoddesdon  Gas 
Co.  V.  Haselwood,  6  C.  B.,  N.  S. 
239;  Souch  v.  Strawbridge,  2  C.  B. 
808;  Callis  v.  Bothamly,  7  Wkly. 
87;  Sykes  v.  Dixon,  9  Ad.  &  EI. 
693;  Lester  v.  Jewett,  12  Barb.  (N. 
Y.)  502;  Utica,  etc.,  R.  R.  Co.  v. 
Brinckerhoff,  21  Wend.  (N.  Y.) 
139,  34  Am.  Dec.  220. 

4.  Clason  v.  Bailey,  14  Johns. 
(N,  Y.)    184;   McCrea  v.  Purmont, 


10  Wend.  (N.  Y.)  450,  30  Am.  Dee. 
103  and  note;  Richardson  v.  Greeu, 
23  N.  J.  Eq.  D3t);  Old  Colony  R.  R. 
Co.  V.  Evans,  (i  Gray  ( Hass. ) ,  33, 
G6  Am.  Dee.  394;  Sutherland  v. 
Briggs,  1  Hare,  34;  Hodges  v.  Row- 
ing, 58  Conn.  12,  18  A.  979. 

5.  Heffron  v.  Arnsly,  61  Mich. 
505,  28  J^.  W.  072. 

6.  Henderson  v.  Beard,  51  Ark. 
483,  11   S.  W.  706. 

7.  Roehl  V.  Haumesser,  114  Ind. 
311,  15  N.  E.  345;  Kennedy  v. 
Eblen,  31  W.  Va.  540,  8  S.  E.  398; 
Watson  V.  Sherman,  88  111.  263; 
Moore  v.  Taylor,  81  Md.  644,  32  A. 
320,  33  A.  886. 


122 


Cll.  4  STATUTE  OF  FKAUDS.  §§  99,  100 

thority  must  be  in  writing.^     The  agent  must  be  some  third 
party  who  has  no  interest  in  the  subject-matter.^ 

When  an  agent  has  the  power  to  make  a  contract  for  the  sale 
of  landj  but  no  power  to  make  a  deed,  and  makes  a  deed,  the  in- 
strument is  void  as  a  deed,  the  deed  is  good  in  equity  as  a  con- 
tract to  convey,  and  if  a  party  enters  upon  the  land  under  such 
an  instrument,  he  is,  in  equity  entitled  to  retain  possession/" 


AKTICLE  IV. 

Remedies  on  the  Conteact. 

Section  100.  No  Action  to  Be  Brought. 

101.  Void  and  Voidable. 

102.  Performance  in  Part — At  Law. 

103.  Part  Performance — In  Equity. 

104.  What  is  Part  Performance. 

105.  Possession  of  Land  and  Improvements. 

106.  Parol  Gift  of  Real  Estate. 

107.  Specific  Performance  of  Agreement. 

108.  Personal  Services  and  Conveyance  of  Personal  Property. 

109.  Recovery  of  Money  Paid. 

110.  Services  Rendered  or  Benefits  Received. 

111.  Use  and  Occupation. 

112.  Defense. 

113.  Who  May  Take  Advantage  of  the  Statute  of  Frauds. 

114.  Waiver  of  Statute  in  Action  for   Breach  of  Contract. 

115.  Conflict  of  Laws. 

116.  Conflict  of  Laws — Statute  of  F'-auds. 

§  100.  No  action  to  be  brought. —  The  statute  provides  that 
"  no  action  shall  be  brought  whereby  to  charge  "  another  on  an 
unwritten  contract.^ 

8.  Lasher  v.  Gardner,  124  111.  10.  Groflf  v.  Ramsey,  19  Minn.  44; 
441,  16  N.  E.  919;  Kozel  v.  Dear-  Thomas  v.  Joslin,  30  Minn.  388,  15 
love,  144  111.  23,  32  N.  E.  542,  36  N.  675;  Baum  v.  Dubois,  43  Pa.  St. 
Am.  St.  Rep.  416;  Pratt  V.  Butcher,  260;  Morrow  v.  Higgins,  29  Ala. 
112  Cal.  634;  44  P.  1060;  Hall  v.  448;  Ledbetter  v.  Walker,  31  Ala. 
Wallace,  88  Cal.  434,  26  P.  360;  175;  Worrall  v.  Munn,  5  N.  Y. 
Gerhart  v.  Peck,  42  Mo.  App.  644;  229,  5o  Am.  Dec.  330  and  note; 
Williams  v.  Mershon,  57  N.  J.  L.  Long  v.  Hartwell,  34  N.  J.  L.  116; 
242,  30  A.  619.  Lobdfll  v.  Mason,  71  Miss.  937,  15 

9.  Bent  v.  Cobb,  9  Gray  (Mass.),  So.  44. 

397,  69  Am.  Dec.  295.  1.  Montgomery    v.    Edwards,    4fi 

123 


§§  100,  101  FREEDOM  OF  CONTRACT.  Cll.  4 

The  statute  of  frauds  affects  the  remedy  only,  and,  as  gener- 
ally held,  not  the  validity  of  the  contract.^  Hence,  when  the 
contract  has  been  executed,  and  if  it  would  have  been  good  be- 
fore the  statute  of  frauds,  it  cannot  be  said  to  be  void.^  And 
when  one  has  done  a  thing  which  he  need  not  have  done  because 
his  promise  was  oral,  he  may  have  his  action  against  the  other 
for  the  consideration  orally  promised,  the  statute  not  for- 
bidding.^ 

§101.  Void  and  voidable. —  In  Alabama,  California,  Michi- 
gan, Nevada,  'New  York,  Oregon,  Virginia,  and  Wisconsin,  the 
statute  does  not  follow  the  English,  but  declares  that  the  con- 
tract shall  be  void  unless  in  writing.  This  would  seem  to  make 
the  contract  absolutely  void  unless  in  writing ;  however  it  is  not 
clear  what  these  statutes  do  mean.  It  is  said  that  such  statute 
makes  the  contract  voidable  but  not  void ;  that  no  action  shall 
be  maintained  to  charge  one  upon  it,  but  for  all  other  purposes 
it  is  good.^  So  an  oral  contract  for  the  sale  of  land  is  not  utterly 
void.^  And  it  is  doubtful  whether  such  a  statute  was  intended 
to  embrace  land  in  other  States,  over  which  the  legislature  had 
no  jurisdiction.'  Provided  the  promisee,  waiving  his  right  to 
the  land  itself,  should  treat  the  contract  as  personal,  bringing 

Vt.   151,   14  Am.  Rep.  618;   Fowler       Adams    v.    Honness,    62    Barb.    (N. 
V.  Burget,  16  Ind.  341.  Y.)    326;    Tinkler   v.    Swaynie,    71 

2.  Townsend    v.    Hargraves,    118       Ind.  562. 

Mass.  325;  Leroux  v.  Brown,  12  C.  5.  Leroux    v.    Brown,    12    C.    B. 

B.    801;     Carrington    v.    Roots,    2  801;  Maddison  v.  Alderson,  8  App. 

Mees.  &  Wei.  248;  Reade  v.  Lamb,  Cas.  467,  488;    Cooper  v.  Hornsly, 

6  Exch.   130;   Browning  v.  Parker,  71  Ala.  62;  Crane  v.  Cough,  4  Md. 

17  R.  I.  183,  20  A'.  835;  Webster  v.  316. 

Le  Compte,  74  Md.  289,  22  A.  234;  6.  Coughlin  v.   Knowles,   7   Met. 

Newton   v.   Bronson,   13  N.  Y.   587,  (Mass.)     57,     39     Am.     Dec.     759; 

67  Am.  Dec.  89  and  note.  Wetherbee  v.  Potter,  99  Mass.  361 ; 

3.  Bolton  V.  Tomlin,  5  Ad.  &  El.  Sims.  v.  Hutchins,  8  Sm.  &  Mar. 
856;  Slatter  v.  Meek,  35  Ala.  528;  (Miss.)  331;  Galway  v.  Shields,  66 
fenaw  V.   Woodcock,   7   Barn.  &  Cr.  Mo.  313,  27  Am.  Rep.  351. 

73;    Newman   v.    Nellis,    97    N.    Y.  7.  See    Gibson    v.    Ins.    Co.,    77 

285.  Fed.  Rep.  561. 


4.  Sims  V.  McEwan,  27  Ala.  184; 


124 


Cll.  4  STATUTE  OF  FEAUDS,  §§  101,  102 

an  action  at  law  for  damages  for  its  breach,  the  lex  celebrationis 
should  govern,  whether  the  action  is  begun  in  the  courts  of  the 
situs,  of  the  locus  celebrationis,  or  of  a  third  State.^  When  the 
promisee  has  waived  all  claim  to  the  land,  and  treats  the  con- 
tract as  personal,  the  same  should  apply  as  in  other  personal 
contracts.® 

§  102.  Performance  in  part  —  At  law^. —  In  a  court  of  law 
part  performance  of  a  verbal  contract  does  not  take  a  case  out 
of  the  statute  of  frauds.^  At  law  part  performance  of  a  parol 
agreement  for  the  sale  of  land  will  not  exempt  it  from  the  opera- 
tion of  the  statute;  and  the  payment  of  the  purchase-money 
is  not  such  a  performance  as  will  induce  a  decree  for  specific 
performance.^  And  if  the  contract  is  void  at  law,  the  vendee  is 
entitled  to  recover  back  anything  he  may  have  paid  to  the  vendor 
on  account  of  such  purchase.^  But  if  the  contract  is  not  void, 
he  will  not  be  allowed  to  recover  back  what  he  has  paid,  where 
the  vendor  is  willing  to  perform  his  part.^  In  lowa^  and  Ala- 
bama,® the  statute  provides  that  certain  acts  of  part  performance 
shall  take  the  contract  out  of  the  statute  of  frauds. 

Marriage,  coupled  with  possession,  is  sufficient  to  compel  per- 

8.  Minor's  Conf.  L.  p.  417,  and  Brown  v.  Pollard,  "89  Va.  696,  17 
cases  cited;  Story's  Conf.  L.  372d;       S.  E.  6. 

Whar.  Conf.  L.  276a.  2.  Anthony  v.  Leftwich,  3  Rand. 

9.  See  Poison  v.  Stewart,  167  (Va.)  255;  Dunsmore  v.  Lyle,  87 
Mass.  211,  45  N.  E.  737,  36  L.  R.  A.       Va.  393,  12  S.  E.  610. 

771,  57  Am.  St.  Rep.  452;  Miller  v.  3.  Brown  v.  Pollard,  89  Va.  696, 

Wilson,  146  111.  523,  34  N.  E.  1111.  17  S.  E.  6. 

37    Am.    St.    Rep.    186;    Wolf    V.  4.  Galway  v.  Shields,  66  Mo.  313, 

Burke,  18  Colo.  264,  32  P.  427,  19  27  Am.  Rep.  351;  Hawley  v.  Moody, 

L.  R.  A.  792  and  note.  24  Vt.  605;  Coughlm  v.  Knowles,  7 

1.  Chicago  Attach.  Co.  v.  Singer  Met.  (Mass.)   57,  39  Am.  Dec.  759; 

Machine  Co.,  142  111.  171,  31  N.  E.  Sims    v.    Hutchins,    8    Sm.    &    M. 

438,    15    L.    R.    A.    754    and    note;  (Miss.)    331. 

Fleming  v.  Carter,  70  111.  2S6;  Du-  5.  Price  v.  Lien,  84  Iowa,  590,  51 

rand  v.  Curtis,  S7  N.  Y.  7 ;  Pierce  N.  W.  52. 

V.    Estate,    28    Vt.    34;    Henry    v.  6.  Louisville,   etc.,  R.   R.   Co.  v. 

Wells,  48  Ark.  485,  3   S.  W.  637;  Philyaw,  94  Ala.  463,  10  So.  83. 


125 


§§  102,  103  FREEDOM  OF  CONTRACT.  Ch.  4 

formance.'  So  where  a  father  verbally  promises,  in  contempla- 
tion of  his  daughter's  marriage,  to  give  her  a  house,  and  she  and 
her  husband  took  possession,  the  possession  and  marriage  took 
the  promise  out  of  the  statute  f  but  marriage  alone  is  not  suffi- 
cient.^ 

Where  the  statute  does  not  declare  otherwise,  payment  of  the 
consideration  alone  does  not  take  a  parol  gift  out  of  the  opera- 
tion of  the  statute  of  frauds.^" 

Delivery  of  possession,  coupled  with  the  making  of  valuable 
improvements  or  the  payment  of  the  purchase  price,  is  sufficient 
to  compel  specific  performance."  And  in  general  delivery  of  pos- 
session alone  having  reference  to  the  contract  is  all  that  is  re- 
quired;^ because,  if  the  contract  was  avoided,  the  vendee  in 
possession  would  be  liable  as  a  trespasser.^' 

§  103.  Part  performance  —  In  equity. —  The  doctrine  that 
part  performance  of  a  contract  will  make  valid  a  contract  in- 
valid by  the  statute  of  frauds,  is  exclusively  a  creature  of  equity 
and  applies  only  to  contracts  relating  to  lands.  ^  So  where  one 
of  the  parties  to  a  contract  void  by  the  statute  of  frauds,  avails 
himself  of  its  invalidity,  and  unconscientiously  appropriates 
what  he  has  acquired  indirect,  equity  will  compel  restitution, 
and  it  constitutes  no  objection  to  the  claim  that  the  opposite 
party  may  secure  the  same  practical  benefit,  through  the  pro- 
cess of  restitution,  which  would  have  resulted  from  the  observ- 

7.  Gregory    v.    Mighell,    18    Ves.  11.  Hotiman  v.  Felt,  39  Cal.  109; 
328.  Glass  v.   Hulbert,    l02   Mass.   24,   3 

8.  Ungley  v.   Ungley,  L.   R.   Ch.  Am.  Rep.  418;   Moss  v.  Culver,  64 
Div.  76.  Pa.  St.  414,  3  Am.  Rep.  601. 

9.  Brown  v.  Conger,  5  Hun    (IST.  12.  Danforth  v.   Lancy,   28   Ala. 
Y.),  625.  274;   Tilton  v.  Tilton,  9  N.  H.  386. 

10.  Gorham    v.    Dodga,    122    111.  13.  Eaton  v.  Whitaker,  18  Conn. 
528,  14  N.  E.  44;  Lanz  v.  McLaugh-       222;  44  Am.  Dec.  486. 

lin,  14  Minn.  72;   Eaton  v.  Whita-  1.  McElroy  v.  Ludlum,  32  N.  J. 

ker,  18  Conn.  222;  Glass  v.  Hulbert,       Eq.  828;  Brittain  v.  Rossiter,  11  Q. 
102  Mass.  24.     In  Iowa  the  accept-       B.  D.  123. 
ance   of   the   purchase    price   makes 
the  contract  binding. 

126 


Ch.  4  STATUTE  OF  FEAUDS.  §§  103,  104 

ance  of  the  void  agreement.  The  part  performance  mnst  be 
such  that  the  party  will  be  put  into  a  situation  which  is  a  fraud 
upon  him  unless  the  agreement  is  fully  performed.^  And  the 
mere  fact  that  the  purchase  price  of  real  estate  was  paid  by  one 
person  and  the  conveyance  thereof  made  to  another,  does  not 
raise  any  use  or  trust  in  favor  of  the  former,  but  the  title  vests 
in  the  latter.  But  this  does  not  prevent  the  operation  of  any 
agreement  that  was  good  in  law  or  equity  in  part  performance  of 
which  the  deed  was  given,  and  the  power  of  a  court  of  equity  to 
compel  the  specific  performance  of  a  verbal  agreement  in  cases 
of  part  performance  is  not  thereby  abridged.^ 

This  principle  rests  upon  equitable  estoppel,  that  the  vendor 
has  so  dealt  with  the  purchaser  in  receiving  the  value  or  a  part 
of  the  purchase-money  or  in  contracting  for  its  payment,  and  in 
putting  the  vendor  in  actual  possession  of  the  land  in  part  exe- 
cution of  the  contract  of  sale  that  it  would  be  a  fraud  on  the 
vendor's  part  to  repudiate  the  contract  and  stop  short  of  the 
complete  execution/ 

When  a  party  obtains  title  to  real  estate  upon  a  verbal  agree- 
ment to  transfer  in  payment  of  the  same  to  the  grantor  other 
property,  real  or  personal,  the  statute  does  not  apply  and 
equity  will  enforce  the  agreement,  since  it  would  be  a  fraud  on 
the  part  of  the  grantee  to  refuse.  Such  an  agreement  is  not 
executory,  but  completely  executed  on  the  part  of  the  grantor, 
and  the  purchaser  alone  is  in  default.^ 

§  104.  What  is  part  preformance. —  Acts  of  part  perform- 
ance to  take  a  parol  contract  out  of  the  statute  of  frauds,  must 

2.  Kincaid  v.  Kineaid,  85  Hun  1  Sell.  &  Lf.  433;  Gallagher  v.  Gal- 
(N.  Y.),  141,  32  K.  Y.  S.  476;  lagher,  31  W.  Va.  9,  5  S.  E.  297; 
Wheeler  v.  Reynolds,  66  N.  Y.  231;  Wright  v.  Pucket,  22  Gratt.  (Va.) 
Farwell  v.  Johnston,  34  Mich.  342.  370;    Harrison  v.  Harrison,   36   W. 

3.  Kineaid  v.  Kincaid,  85  Hun  Va.  556,  lo  S.  E.  87;  Trammell  v. 
(N.  Y.),  141.  32  X.  Y.  S.  476;  Craddock,  100  Ala.  266,  13  So.  911. 
Smith  V.  Smith,  125  N.  Y.  224,  26  5.  Sprague  v.  Coehran,  144  N.  Y. 
X.  E.  259 ;  Murkley  V.  Whitney,  140  104,  38  N.  E.  1000;  Roberge  v. 
N.  Y.  546,  35  N.  E.  930.  Winne,  144  N.  Y.  709,  39  N.  E.  631; 

4.  Miller  v.   Lorentz.   39  W.  Va.  Xewman  v.  Xellis,  97  N.  Y.  285. 
160.  19  S.  E.  391;   Clinan  v.  Cook, 

127 


§     104  FEEEDOM    OF    CONTRACT.  Cll.    4 

be  of  such  unequivocal  nature  as  of  themselves  to  be  evidence  of 
the  existence  of  an  agreement;  thus,  vi^here,  under  parol  agree- 
ment to  sell  land,  the  purchaser  is  put  in  possession,  and  makes 
valuable  improvements.^  Payment  or  part  payment  of  the  pur- 
chase-money is  not  sufficient  to  take  the  contract  out  of  the 
statute.^ 

An  act  of  part  performance,  to  take  a  case  out  of  the  statute 
of  frauds,  must  be  sufficient  of  itself,  without  any  other  in- 
formation or  evidence,  to  satisfy  the  court,  from  the  circum- 
stances it  has  created  and  the  relation  it  has  formed,  that  they 
are  only  consistent  with  the  assumption  of  the  existence  of  a 
contract  the  terms  of  which  equity  requires,  if  possible,  to  be 
ascertained  and  enforced. 

This  is  so  because  the  defendant  in  a  suit  founded  on  such 
part  performance  is  really  "  charged  "  upon  the  equities  re- 
sulting from  the  acts  done  in  execution  of  the  contract,  and  not, 
within  the  meaning  of  the  statute,  upon  the  contract  itself. 
Hence,  until  such  acts  are  shovvm  as  of  themselves  imply  the 
existence  of  some  contract,  parol  evidence  to  show  the  terms 
of  the  contract  relied  on  is  inadmissible.^ 

The  act  of  performance  as  could  be  done  with  no  other  view 
or  design  than  to  perform  the  agreement.*  The  principle  of  the 
cases  is  that  the  act  must  be  of  such  nature  that,  if  stated,  it 
would  of  itself  infer  the  existence  of  some  agreement  and  then 
parol  evidence  is  admitted  to  show  what  the  agreement  is.^ 

1.  Hale  V.  Hale,  90  Va.  728,  19  Kinyon  v.  Young,  44  Mich.  339,  6 
S.  E.  739;  Maddison  v.  Alderson,  8  N.  835;  Nibert  v.  Bazhursl,  47  N. 
App.  Cas.  479,  7  Q.  B.  D.  174.  J.  Eq.  201,  20  A.  252;  Forrester  v. 

2.  Cooley  V.  Lobdell,  82  Hun  (N.  Flores,  64  Cal.  2i,  28  P.  107; 
Y.),  98,  31  N.  Y.  S.  202;  Brown  v.  Townsend  v.  Vanderwerker,  20  D. 
Pollard,    89   Va.    696,   17    S.    E.    6;  C.  197. 

Glass  V.  Hulbert,   102  Mass.  28,  3  3.  Dale    v.    Hamilton,    5    Hare, 

Am.  Rep.  418;  Boulder  Valley,  etc.,  381;  Maddison  v.  Alderson,  8  App. 

Co.  V.  FarnHam,  12  Mont.  1,  29  P.  Cas.  467;  Hale  v.  Hale,  90  Va.  728, 

277;  Maxfield  v.  West,  6  Utah,  327,  19  S.  E.  739. 

23  P.  754;    Gorham  v.  Dodge,   122  4.  Gunter  v.  Halsey,  Amb.  586. 

111.   528,   14  N.   E.  44;    Goddard  v.  5.  Frome    v.     Dawson,     14    Ves. 

Danaha,  42  Kan.   754,   22  P.   708 ;  387 ;  Phillips  v.  Thompson,  1  Johns. 

Horn  V.   Luddington,   32   Wis.    73;  Ch.    (N.  Y.)    131. 

128 


Ch.  4 


STATUTE    OF    FEAUDS. 


§  105 


§  105.  Possession  of  land  and  improvements.  —  Possession 
must  be  taken  under  the  verbal  contract.  It  is  not  enough  that 
the  possession  was  taken.  It  must  be  taken  under  the  verbal 
contract  pursuant  to  the  provisions,  in  order  to  take  the  contract 
out  of  the  statute/  when  the  consideration  has  been  paid,^  or 
valuable  improvements  have  been  made  on  the  land  in  the  pur- 
chaser's possession.'  And  a  party  having  possession,  who  buys 
and  then  makes  valuable  improvements,  will  be  protected,  be- 
cause this  is  such  a  part  performance  as  to  take  the  contract 
out  of  the  statute.*  Mere  possession  alone  is  not  sufficient;^ 
it  must  be  under  the  contract,  payment  of  consideration  and 
generally  improvements  must  be  made.® 


1.  Boozer  v.  Trague,  27  S.  Car. 
348,  3  S.  E.  551 ;  Tunison  v.  Brad- 
ford, 49  N.  J.  Eq.  10,  22  A.  1073; 
Foster  v.  Maginnis,  89  Cal.  264,  26 
P.  828 ;  Clark  v.  Clark,  122  111.  388, 
13  N.  E.  553;  Ridgway  v.  Ridgway, 
69  Md.  242,  14  A.  659;  Judy  v. 
Gilbert,  77  Ind.  96,  40  Am.  Rep. 
289  and  note;  Waymire  v.  Way- 
mire,  141  Ind.  164,  40  N.  E.  523. 

2.  Martin  v.  Patterson,  27  S. 
Car.  621,  2  S.  E.  859;  Carney  v. 
Carney,  95  Mo.  353,  8  8.  W.  729; 
Bechtel  v.  Cone,  52  Md.  698 ;  Gould 
V.  Banking  Co.,  136  111.  60,  26  N.  E. 
497;  Jameson  v.  Dimock,  95  Pa. 
St.  52;  Lipp  V.  Hunt,  25  Neb.  91, 
41  N.  W.  143;  Compare  Bradley  v. 
Owsley,  74  Tex.  69,  11  S.  W.  1052. 

3.  Smith  V.  Smith,  125  N.  Y. 
224,  26  N.  E.  259 ;  Freeman  v.  Free- 
man, 43  N.  Y.  34,  3  Am.  Rep.  657; 
Hale  V.  Hale,  90  Va.  728,  19  S.  E. 
739 ;  Mudgett  v.  Clay,  5  Wash.  103, 
31  P.  424;  Brown  v.  Sutton,  129  U. 
S.  238,  9  S.  Ct.  273;  Potter  v. 
Jacobs,  111  Mass.  32;  Cutsinger  v. 
Ballard,  115  Ind.  93,  17  N.  E.  206; 
Evans  v.   Miller,  38   Minn.   245,  36 


N.  W.  640;  Barnett  v.  Forney,  82 
Va.  269;  Hunter  v.  Mills,  29  S. 
Car.  72,  6  S.  E.  907;  ivloulton  v. 
Harris,  94  Cal.  420,  29  P.  706; 
Hunkins  v.  Hunkins,  65  N.  H.  95, 
18  A.  665;  McWhinne  v.  Martin, 
77  Wis.  182,  46  N.  W.  18;  Morri- 
son V.  Herrick,  130  111.  631,  22  N. 
E.  537. 

4.  Peck  V.  Stanfield,  12  Wash. 
101,  40  Pac.  635. 

5.  Dongan  v.  Blocker,  24  Pa.  St. 
28;  Glass  v.  Hulbert,  102  Mass.  32, 
3  Am.  Rep.  418;  Miller  v.  Ball,  64 
N.  Y.  292;  Hibbert  v.  Aylatt,  52 
Tex.  530;  Compare  Kennemore  V. 
Kennemore,  26  S.  Car.  251,  1  S.  E. 
881. 

6.  Townsend  v.  Vanderwerker, 
160  U.  S.  171,  16  S.  Ct.  258;  Wells 
V.  Stradling,  3  Ves.  Jr.  378;  Mundy 
V.  Joliffe,  5  My.  &  Cr.  167;  Mor- 
gan V.  Battle,  95  Ga.  663,  22  S.  E, 
689;  Delevan  v.  Wright,  110  Mich. 
143,  67  N.  W.  nO;  Mournin  v. 
Trainer,  63  Minn.  230,  65  N.  W. 
444;  Stuht  v.  Sweesy,  48  Neb.  767, 
67  N.  W.  748. 


129 


§§  106,  107  FREEDOM  OF  CONTRACT.  Cll.  4 

§  io6.  Parol  gift  of  real  estate. —  A  parol  gift  of  real  estate 
and  a  parol  promise  to  convey  the  same  is  valid  and  enforcible 
in  equity,  where  the  donee  has  entered  into  possession  of  the 
property  and  made  permanent  improvements  thereon,  on  the 
faith  of  the  donor's  promise/  and  this,  although  when  specific 
performance  by  the  donee  is  claimed,  the  rental  value  of  the 
property  for  the  time  it  has  been  occupied  by  the  latter  would 
be  more  than  the  amount  expended  by  him.^  Because  the  courts 
of  equity,  in  decreeing  specific  performance  of  verbal  agreements 
where  there  has  been  part  performance,  do  so  for  the  purpose 
of  preventing  a  party  from  escaping  engagements  he  has  en- 
tered into  through  the  statute  of  frauds,  after  the  other  party  to 
the  contract  has  expended  his  money,  or  otherwise  acted  in  exe- 
cution of  the  agreement.^  Expenditures  made  upon  permanent 
improvements  upon  land  with  the  knowledge  of  the  owner,  in- 
duced by  his  promise,  made  to  the  party  making  the  expendi- 
ture, to  give  the  land  to  such  party,  constitute  in  equity  a  con- 
sideration for  the  promise.*  Whether  delivery  of  possession  of 
the  land  is  sufficient  to  take  a  parol  gift  of  land  out  of  the 
statute  of  frauds,  is  a  question  of  some  difficulty.  Some  of  the 
courts  hold  that  a  valuable  consideration  must  also  pass.^  If  a 
parol  gift  is  clearly  proven  and  possession  is  given,  it  should  be 
specifically  enforced.® 

§  107.  Specific  performance  of  agreement. —  Many  courts 
hold  that  where  an  agreement  has  been  executed,  or  is  partly 
performed  by  the  plaintiff,  and  the  acts  done  place  him  in  a 
position  which  is  a  fraud  upon  him  unless  the  agreement  is 

1.  Lobdell  V.  LoDdell,  46  N.  Y.  Watts  (Pa.),  510;  Schuey  v. 
327,  7  Am.,  Rep.  341;  Crosbie  v.  Schaefer,  130  Pa.  St.  23,  18  A.  544, 
McDonald,  13  Ves.  148;  Freeman  549;  Seary  v.  Drake,  62  N.  H.  393. 
V.  Freeman,  43  N.  Y.  34,  3  Am.  4.  Freeman  v.  Freeman,  43  N.  Y. 
Rep.  657;   Schroeder  v.  Wauzor,  36  34,  3  Am.  Eep.  657. 

Hun  (N.  Y.),  425;  Ogsbury  v.  Ogs-  5.  Stewart  v.    Stewart,    3   Watts 

bury,  115  N.  Y.  290,  22  N.  E.  219.  (Pa.),  253. 

2.  Young  V.  Overbaugh,  145  N.  6.  Freeman  v.  Freeman,  43  N.  Y. 
Y.  158,  39  N.  E.  712.  34,    3    Am.    Rep.    Cr57;    Manley    v. 

3.  Young      V.      Glendenning,      6  Hewlett,  55  Cal.  9'^:. 

130 


Ch.  4  STATUTE  OF  FRAUDS.  §§  107,  108 

executed,  equity  will  not  permit  the  defendant  to  protect  him- 
self from  executing  his  part  of  the  agreement  by  pleading  that 
the  contract  was  not  in  writing.^  So  in  the  sale  of  land  when 
all  the  requisites  have  been  complied  with,  a  deed  will  be  de- 
creed to  the  vendee.  Thus,  when  the  contract  fully  described 
the  boundaries,  the  precise  amount  of  the  consideration,  pos- 
session actually  delivered  by  the  vendor  and  taken  by  the  vendee, 
a  deed  will  be  decreed  to  be  made  by  vendor  to  vendee.^  But 
it  has  been  held  by  some  courts  that  a  written  contract  cannot 
be  decreed,  as  it  is  not  such  a  fraud  as  will  take  the  contract 
out  of  the  statute.^  But  generally  specific  performance  of  a 
contract  will  be  decreed  when  the  contract  is  valid,  unobjec- 
tionable in  character,  and  capable  of  being  enforced.^ 

§  io8.  Personal  services  and  conveyance  of  personal  prop- 
erty.—  The  equity  of  part  performance  to  entitle  plaintiff  to 
specific  execution  of  a  contract  within  the  statute,  does  not  ex- 
tend to  contracts  within  the  fifth  clause  of  the  fourth  section  of 
the  statute,  when  such  contracts,  not  being  evidence  in  writing, 
relate  to  personal  service,  or  the  subject-matter  of  them  is  the 
sale  and  delivery  of  mere  personal  chattels.^  So  for  labor  and 
service  performed  under  a  contract  which  is  void  under  the 
statute,  a  recovery  may  be  had  by  declaring  a  quantum  meruit.'" 
And  where  a  person  pays  money,  renders  service  or  conveys 
property  under  an  agreement  within  the  statute,  which  the  other 

1.  Dean  v.  Anderson,  C4  N.  J.  504,  22  N.  E.  90,  23  N.  E.  86; 
Eq.  496;  Walker  v.  Barney,  6  Madd.  Feeney  v.  Howard,  79  Cal.  525,  21 
247;    Herman  v.  Hodges,  L.   R.    16       P.  984,   12  Am.  St.  Rep.   162. 

Eq.  18;  Humble's  Case,  11  Irish  Ch.  4.  Hoover  v.  Buck  (Va.),  21  S. 
132;  McClintock  v.  Laing,  22  Mich.  E.  474;  Grubb  v.  Sliarkey,  90  Va. 
212;  Lav/rence  v.  Lawrence,  42  N.  831,  20  S.  E.  784. 
H.  109;  Equitable  Gas  Light  Co.  v.  5.  Equitable  Gas  Light  Co.  v. 
Manuf.  Co.,  63  Md.  285;  Graft  v.  Manuf.  Co.,  63  5ld.  285;  Brittain 
Loucks,  138  Pa.  St.  453,  21  A.  203;  v.  Rossiter,  12  Q.  B.  D.  123;  Mad- 
McDonald  V.  Youngblutli,  46  Fed.  dison  v.  Alderson,  8  App.  Cas.  474, 
Rep.  836.  490. 

2.  Graft  v.  Loucks,  138  Pa.  St.  6.  Patten  v.  Hicks,  43  CaL  509; 
453,  21  A.  203.  Whipple  v.  Parker,  29  Mich.  369. 

3.  Jackson    v.    Myers,    120    Ind. 

131 


§§  108-110  FREEDOM  OF  CONTEACT.  Ch.  4 

party  refuses  to  perforin,  an  action  will  lie  by  such  person 
against  the  party  refusing,  to  recover  the  money  paid  or  the 
value  of  the  services  rendered  or  the  property  conveyed.'' 

And  so  a  parol  agreement  to  devise  and  bequeath  real  and 
personal  property  as  compensation  for  a  nephew's  services  is 
within  the  statute  of  frauds  as  to  the  real  estate,  and,  being  in- 
admissible, fails  wholly;  but  it  may  be  shown  in  evidence  to 
rebut  the  presumption  that  the  services  were  rendered  gratuit- 
ously, and  the  nephew  may  recover  quantum  meruit.^ 

§  log.  Recovery  of  money  paid. —  If  a  contract  is  invalid 
because  it  is  oral,  and  the  vendor  has  received  a  purchase-money, 
and  then  refuses  to  comply  with  the  contract,  he  may  be  com- 
pelled to  repay  the  purchase-price.'^  But  the  purchaser  must 
be  willing  to  consummate  the  bargain,  or  he  cannot  recover.^  It 
is  when  the  vendor  repudiates  the  contract  invalid  under  the 
statute,  that  the  vendee  may  recover  back  the  amount  he  has 
paid.^ 

§  no.  Services  rendered  or  benefits  received. —  When  the 
contract  is  invalid  under  the  statute  and  one  party  has 
accepted  its  benefit  or  received   the   consideration,    an   action 

7.  Sherburne  v.  Fuller,  5  Mass.       660,  59  N.  W.  129,  41  Am.  St.  Rep. 
133,    138;     Gillet    v.    Maynard,    5       74. 

Johns.  (N.  Y.)  8S,  i  Am.  Dec.  329;  1.  Herrick   v.    Newell,   49   Minn. 

King   V.    Brown,    2    Hill    (N.    Y.),  149,  51  N.  W.  819;  Taylor  v.  Read, 

485;  Day  v.  Railroad  Co.,  51  N.  Y.  19  Minn.  372;   Schroeder  v.  Loeber, 

683;  Richards  v.  Allen,  17  Me.  296;  75  Md.  195,  23  A.  579,  24  A.  226; 

O'Grady  v.  O'Grady,  162  Mass.  290,  Welch  v.  Darling,  59  Vt.   136,  7  A. 

38   N.   E.    196;    Dix  v.   Marcy,   116  547. 

Mass.  416.  2.  Brockhausen  v.  Bowes,  50  111. 

8.  Ellis  V.  Gary,  74  Wis.  177,  42  App.    98;    Dulin  v.   Price,   124   111. 
N.   W.   252,    17   Am.   St.   Rep.   120;  76,  16  N.  E.  242. 

Freeman  v.  Foss,  145  Mass.  361,  14  3.  Wilkie  v.  Womble,  90  N.  Car. 

N.    E.    141,    1    Am.    SI.    Rep.    467;  254;     Durham,    etc.,     Improvement 

Wallace  v.  Long,  105  Ind.  522,  5  N.  Co.  v.  Guthrie,  116  N.  Car.  381,  21 

E.  666,  55  Am.  Rep.  222 ;   Schwab  S.  E.  952 ;  Bacon  v.  McChrystal,  10 

V.  Pierro,  43  Minn.  520,  523,  46  N.  Utah,  290,  37  P.  563.  ' 
W.  711;  Estate  of  Kessler,  87  Wis. 

13-2 


Ch.  4:  STATUTE  OF  FRAUDS.  §§  110,  111 

may  be  maintained  against  him  for  the  benefit  thus  con- 
ferred, and  the  money,  property,  or  value  thus  accepted  and 
appropriated  by  him ;  not,  however,  upon  the  contract,  but  upon 
the  appropriate  common  counts  in  assumpsit,  and  upon  the 
duty,  promise,  or  obligation  springing  from  the  property,  money, 
or  benefit  thus  conferred  by  the  plaintiff,  and  received  and  ap- 
propriated by  the  defendant.^ 

The  statute  includes  every  agreement  by  which  one  promises 
to  sell  an  existing  interest  in  land  upon  a  consideration  either 
good  or  valuable.  Hence,  a  contract  to  convey  land  in  considera- 
tion of  labor  or  service  to  be  rendered,  is  within  the  statute.' 
But  when  the  contract  is  repudiated  by  the  vendor  a  quantum 
meruit  will  lie  for  the  value  of  the  services.^ 

§  III.  Use  and  occupation. —  Though  a  contract  for  the  use 
of  property  is  invalid  by  the  statute  of  frauds,  its  covenants  are 
still  valid  so  long  as  the  use  continues.*  The  fact  that  a  party 
has  been  let  into  possession  of  the  premises  under  a  verbal  con- 
tract and  occupies  them  for  a  time  and  pays  rent  pursuant  to  a 
verbal  contract,  does  not  take  the  case  out  of  the  statute,  and 
there  can  be,  therefore,  no  recovery  under  the  contract,  and  the 
only  remedy  of  the  lessor  is  under  quantum  meruit  for  use  and 
occupation.^ 

1.  Whipple  V.  Parker,  29  Mich.  40  Kans.  367,  19  P.  862;  Koch  v. 
374;  Pierce  v.  Paine,  28  Vt.  34;  Williams,  82  Wis.  186,  52  N.  W. 
Emery  v.  Smith,  46  N.  H.  151;  257;  Thomas  v.  Hatch,  53  Wis. 
Cadman  v.  Markle,  76  Mich.  448;  296,  10  N.  393;  Miller  v.  Eldredge, 
43  N.  W.  315,  5  L.  R.  A.  707  and  126  Ind.  461,  27  N.  E.  132. 

note.  4.  Hermann  v.    Curiel    (N.   Y.), 

2.  Dowling  V.  McKenny,  124  3  App.  Div.  511,  38  N.  Y.  S.  343; 
Mass.  478 ;  Baxter  v.  Kitch,  37  Ind.  Steele  v.  Asso.,  57  Minn.  18,  58  N. 
554;  Burlingame  v.  Burlingame,  7  W.  685;  Zachry  v.  Molan,  66  Fed. 
Conn.   92;    Helm  v.   Logan,   4   Bibb  Rep.  467. 

(Ky.),  78;    Jock  v.   McKee,  9  Pa.  5.  Marr  v.  Ray,  151  111.  340,  37 

St.  235;  Sprague  v.  Haines,  08  Tex.  N.   E.    1029,   26   L.   R.   A.   399   and 

215,  4  S.  W.  371.  note;    Chicago    Attachment    Co.    v. 

3.  King  V.  Brown,  2  Hill  (N.  Sewing  Machine  Co.,  142  HI.  171, 
Y.),  485;  Stevens  v.  Lee,  70  Tex.  31  N.  E.  438;  Smallwood  v.  Shep- 
279,  8  S.  W.  40;  Wonsettler  v.  Lee,  pards   (1895),  2  Q.  B.  627. 

133 


§§  111,  112        FREEDOM  OF  CONTRACT.  Ch.  4r 

The  English  rule  is  that  a  parol  lease  in  contravention  of  the 
statute,  under  which  possession  is  taken  creates  a  tenancy  at  will, 
and  payment  of  rent  thereunder  converts  it  into  a  tenancy  from 
month  to  month  or  year  to  year  as  the  period  may  be  indicated 
by  the  payment.*' 

In  many  of  the  States  the  English  rule  prevails  while  in 
others  the  only  tenancy  created  under  such  circumstances  is  one 
from  year  to  year,  the  contract  controlling  the  rights  and  obli- 
gations of  the  parties  in  all  particulars  except  as  to  duration.^ 

§  112.  Defense. —  A  verbal  contract  within  the  condemna- 
tion of  the  statute,  as  for  the  sale  of  land,  cannot  be  enforced 
in  any  way  either  directly  or  indirectly,  and  cannot  be  made  a 
ground  of  demand  or  a  ground  of  defense.^  The  party  may 
plead  the  statute  in  bar  of  a  collateral  action,  based  on  the  con- 
tract, as  well  as  of  a  direct  action  on  the  contract  itself.^  Thus, 
if  a  party  in  express  terms  makes  a  verbal  contract  to  serve  for 
five  years,  it  cannot  be  enforced  against  him  by  the  other  party. 
And  if  after  serving  a  portion  of  the  time  he  should  refuse  to 
carry  out  his  contract,  and  bring  suit  to  recover  the  value  of  the 
services  rendered,  the  verbal  contract  will  not  avail  the  employer 
as  a  defense.  It  cannot  be  set  up  as  a  contract  at  all ;  the  breach 
of  it  will  impose  no  liability  which  the  law  can  enforce ;  the 
obligation  to  perform  cannot  be  maintained  in  an  action  at  law.' 

6.  Clayton  v.  Blakey,  8  Term  R.  111.  124;  Creighton  v.  Sanders,  89 
3.  111.    543;     Brownell    v.    Welch,    91 

7.  Koplitz  V.  Gustavus,  48  Wis.       111.  523. 

48,    3    N.    754;    Morehead    v.    Wot-  1.  McGinnis    v.    Fernandes,     126 

lyus,  5  B.  Mon.  (Ky.)  228;  Dunn  v.  111.   228,   19   N.   E.   44;    Wheeler   v. 

Rothermel,    112    Pa.    St.   272,   3   A.  Frankenthal,  78  111.  124;  Leavitt  v. 

800;   Laughran  v.  Smith,  75  N.  Y.  Stern,  159  111.  526,  42  N.  E.  869. 

205;  Morrill  v.  Mackman,  24  Mich.  2.  Banks  v.   Crossland,  L.   R.   10 

279,    9    Am.    Rep.    124;     Evans    v.  Q.  B.  97,  100;  Carrington  v.  Roots, 

Winona  Lumber  Co.,  30  Mmn.  515,  2  Mees.  &  Wei.  248;  Reade  v.  Lamb, 

16  N.  404;  Cody  v.  Quarterman,  12  6  Exch.   130;   Comes  v.  Lawaon,   16 

Ga.  386 ;  Drake  v.  Newton.  23  N.  J,  Conn.  246. 

L.    Ill;    Warner    v.    Hale,    65    111.  3.  Baker   v.   Lauterbach,   68   Md. 

395;     Wheeier    v.    FranKentnal,    78  64,  11    A.  703. 


134 


Ch.  4  STATUTE  OF  FRAUDS.  §§  112-114 

The  contract  cannot  be  available  as  a  contract  at  all,  unless  an 
action  can  be  brought  upon  it.  What  is  done  under  the  contract 
may  admit  of  apology  or  excuse,  as  where  a  contract  by  parol, 
the  party  is  put  into  possession,  that  possession  may  be  set  up 
as  an  excuse  for  trespass  alleged  to  have  been  committed  by  him. 

The  agreement  may  be  available  in  answer  to  a  trespass  by 
setting  up  a  license ;  not  setting  up  the  contract  itself  as  a  con- 
tract, but  only  showing  matter  of  excuse  for  the  trespass.* 

§  113.  Who  may  take  advantage  of  the  statute  of  frauds. — 

The  statute  of  frauds  is  a  defense  personal  to  the  party  to  the 
contract.^  So  the  benefit  of  the  statute  of  frauds  cannot  be 
claimed  by  one  not  a  party  to  the  contract  who  is  not  sought  to 
be  charged.®  Many  cases  illustrate  the  doctrine  that  a  third 
person  cannot  make  the  statute  available  to  overthrow  a  trans- 
action between  other  persons.^  It  concerns  the  remedy  alone, 
and  the  modern  law  is  well  settled  that  in  the  absence  of  a 
statutory  provision  to  the  contrary,  the  effect  of  the  statute  of 
frauds,  is  not  to  render  the  agreement  void,  but  simply  to  pre- 
vent its  enforcement  by  parties  and  to  refeuse  damages  for  its 
breach.^ 

§  114.   Waiver  of  statute  in  action  for  breach  of  contract. — 

It  is  generally  held  that  contracts  within  the  statute  of  frauds 
are  not  void  but  voidable ;  hence,  a  party  to  be  charged  may 
waive  the  statute  and  the  contract  thereby  becomes  binding 

4.  Carrington  v.  Roots,  2  Mees.  93  Am.  Dec.  755;  Dock  Co.  v. 
&  Wei.  248.  Kinzie,     49     111.     289;     Wright    v. 

5.  Carpenter  v.  Davis,  72  111.  14;  Jones,  105  Ind.  17,  4  N.  E.  281; 
King  V.  liushnell,  121  111.  656,  13  Savage  v.  Lee,  101  Ind.  514;  Ames 
N.   E.    245;    Cahill   v.   Bigelow,    18  v.  Jackson,  115  Mass.  508. 

Pick.    (Mass.)   369.  7.  Jackson  v.  Stanfield,  137  Ind. 

6.  St.  Louis,  etc.  Railroad  Co.  v.  592,  36  N.  E.  345,  37  N.  E.  14,  23 
Clark,   121  Mo.   169,  25  S.  W.   192,       L.  R.  A.  588. 

906,    26    L.    R.   A.    751    and   note;  8.  Jackson  v.  Stanfield,  137  Ind. 

Cooper  V.  Hornsby,  71  Ala.  62;  592,  36  N.  E.  345,  37  N.  E.  14,  23 
Houser  v.  Lamont,  55  Pa.  St.  311,       L.  R.  A.  588. 


135 


§§    111,  115  FREEDOM    OF    CONTRACT.  Ch.    4 

upon  him.^  So  when  a  contract  within  the  statute  of  frauds  is 
proved  by  parol  evidence  without  objection  or  exception,  the 
right  to  invoke  the  statute  is  waived,  and  cannot  afterwards  be 
insisted  upon.^  And  the  statute  of  frauds  as  a  defense  must  be 
pleaded  or  it  will  be  considered  as  waived  though  shown  by  the 
evidence.^ 

§  115.  Conflict  of  laws. —  Where  a  contract  is  entered  into 
in  one  State  to  be  performed  in  another,  there  are  two  loci  con- 
tractus, the  lex  loci  celebrationis  and  lex  loci  solutionis,  and  the 
law  of  the  former  governs  the  interpretation,  nature,  and  valid- 
ity of  the  contract,  that  of  the  latter  its  performance.  A  con- 
tract may  be  valid  by  the  law  of  both  places,  and  yet  fail  practi- 
cally, if  the  lex  fori  does  not  permit  its  enforcement.* 

This  is  a  rule  of  personal  contracts,  though  it  is  at  variance 
with  many  dicta  and  decisions,  but  is  well  supported  on  au- 
thority.^ And  some  cases  hold  that  a  contract  made  in  good 
faith  in  one  State  to  be  performed  in  another,  will  be  upheld  if 
if  conforms  to  the  law  of  either  State.    Because,  in  making  such 

1.  Aultman  v.  Booth,  95  Mo.  383,  Cal.  280,  22  A.  856;  Earnhardt  v. 
8  S.  W.  742;  McGowen  v.  West,  7  Walls,  29  Mo.  App.  206;  Semmes  v. 
Mo.  570,  38  Am.  Dec.  468;    Sneed       Worthington,  38  Md.  298;   Popp  v. 

•v.   Bradley,  4   Sneed    (Tenn.),  304,  Swanke,  68  Wis.  364,  31  N.  W.  916; 

70    Am.    Dec.    250;     Brakefield    v.  Hogan   v.    Easterday,    58    111.   App. 

Anderson,   87   Tenn.   206,   10  S.   W.  45 ;  Hurt  v.  Ford,  142  Mo.  "283,  44 

360;    Montgomery    v.    Edwards,    46  S.  W.  Rep.  228. 
Vt.   151,  14  Am.  Rep.  618.  4.  Leroux    v.    Brown,    12    C.    B. 

2.  Nunez  v.  Morgan,  77  Cal.  427,  801;  Emery  v.  Burbank,  163  Masa. 
19  P.  753;  Donald  v.  Homestead  3lu,  39  N.  E.  1026,  47  Am.  St.  Rep. 
Asso.,    51     Cal.    210;     McClure    v.  456. 

Otrich,   118   111.   320,  8  N.  E.   784;  5.  Cooper  v.  Waldegrave,  2  Beav. 

Wells  V.   Monihan,    129   N.  Y.   161,  282;   Vidal  v.  Thompson,   11  Mart. 

29  N.  E.  232.  (La.)   23;   Dacosta  v.  Davis,  24  N. 

3.  Espalla  V.  Wilson,  86  Ala.  487,  J.  L.  319;  Aymar  v.  Sheldon,  12 
5  So.  867;  Jonas  v.  Fields,  83  Ala.  Wend.  (N.  Y.)  439,  27  Am.  Dec. 
445,  3  So.  895;  Barrett  v.  McAl-  137  and  note;  Chapman  v.  Robert- 
lister,  33  W.  Va.  738,  11  S.  E.  230;  son,  6  Paige  (N.  Y.),  627,  31  Am. 
Compare  Fontaine  v.  Bush,  40  Dec.  264  and  note;  Bain  v.  Railway, 
Minn.  141,  41  N.  W.  465,  12  Am.  3  H.  L.  1 ;  Story  on  Conil.  of  L. 
St.  Rep.  722;   Harris  v.  Frank,  81  234. 

136 


Ch.    4  STATUTE    OF    FEAUDS.  §    115 

contracts  the  pnrties  may  have  in  view  either  the  law  of  the 
State  where  the  contract  is  made  or  the  law  of  the  State  where 
it  is  to  be  performed ;  hence,  if  made  in  good  faith  without  any 
desig-n  to  evade  the  law,  it  ought  to  be  allowed  and  enforced  ac- 
cording to  its  presumable  intent,  ut  res  magis  valeat  quam 
pereat,  that  the  thing  may  rather  have  effect  than  be  destroyed.^ 

If  the  contract  is  void  because  not  in  writing,  the  question  is 
determined  by  the  lex  loci  celebrationis.''  If  the  question  is  not 
one  of  validity  but  whether  an  action  can  be  brought  on  it,  the 
lex  fori  governs.^ 

The  statute  of  frauds  is  somewhat  different  in  the  several 
States.  In  some  it  is  provided  that  "  no  action  shall  be  brought" 
on  a  contract  unless  it  is  in  writing,  and  others  that  such  con- 
tract shall  be  "  void  "  unless  it  is  in  writing.  In  such  case  a 
contract  made  under  the  first  would  not  be  void,  and  if  suit  was 
brought  on  it  in  the  second  case,  it  would  be  enforced,  because 
the  oral  contract  is  not  void  by  the  lex  celebrationis  and  is  not 
against  the  statute  of  the  lex  fori,  or  in  other  words  the  statute 
would  not  apply  in  either  case.^  If  the  lex  celebrationis  pro- 
vides that  no  action  shall  be  brought  unless  in  writing,  while  the 
lex  fori  does  not  require  it  to  be  in  writing,  then  the  lex  fori 
does  not  raise  the  question  of  the  impairment  of  the  obligation 
of  the  contract.  The  matter  is  one  pertaining  to  the  remedy 
to  be  controlled  by  the  lex  fori,  which  will  enforce  the  obliga- 
tion to  a  greater  extent  than  would  the  lex  celebrationis}'^ 

6.  Bolton  V.  street,  3  Cold.  /!)2  and  note;  Compare  Baxter 
(Tenn.)  31;  Fisher  v.  Otis,  3  Bank  v.  Talbot,  154  Mass.  213,  28 
Chand.  (Wis.)  83;  Depau  v.  Hum-  N.  E.  163,  13  L.  R.  A.  97  and 
phreys,    8    Mart.     (La.)    N.    S.    1;  note. 

Cromwell  v.  County,  96  U.  S.  51.  9.  Wolf  v.   Burke,   IS   Colo.  264, 

7.  Miller  v.  Wilson,  146  111.  523,  32  P.  427,  19  L.  R.  A.  792  and  note. 
34  N.  E.  1111,  37  Am.  St.  Rep.  186;  10.  Downer  v.  Chesbrough,  36 
Wilson  V.  Mills  Co.,  150  !N.  Y.  314,  Conn.  39,  4  Am.  Rep.  29;  Wolf  v. 
44  N.  E.  959,  55  Am.  St.  Rep.  680;  Burke,  18  Colo.  264,  32  P.  427,  19 
Sullivan  v.  Sullivan,  70  Mich.  583,  L.  R.  A.  792  and  note;  Compare 
38  N.  W.  472.  Cochrane  v.  Ward,  5  Ind.  App.  89, 

8.  Hall  v.  Cordell,  142  U.  S.  116,  29  N.  E.  795,  31  N.  E.  581.  51  Am. 
12   S.   Ct.   154;    Wolf  v.   Burke,   18  St.  Rep.  229. 

Colo.   264,   32   P.   427,   19   L.  R.   A. 

137 


§    116  FREEDOM    OF    CONTRACT.  Ch.    4: 

§  ii6.  Conflict  of  laws  —  Statute  of  frauds. —  It  has  been 
field  that  a  contract,  valid  by  the  laws  of  the  place  where  it  is 
made,  although  not  in  writing,  will  not  be  enforced  in  the  courts 
of  a  country  where  the  statute  of  frauds  prevails,  unless  it  is  put 
in  writing.^  But  where  the  law  of  the  forum  and  that  of  the 
place  of  the  execution  of  the  contract  coincide,  it  will  be  en- 
forced, although  required  to  be  in  writing  by  the  law  of  the 
place  of  performance,^  because  the  form  of  the  contract  is  regu- 
lated by  the  law  of  the  place  of  its  celebration,  and  the  evi- 
dence of  it  by  that  of  the  forum.^ 

As  to  the  requisites  of  a  valid  contract,  the  mode  of  authenti- 
cation, the  forms  and  ceremonies  required  and  as  to  every  thing 
which  is  necessary  to  perfect  or  consummate  the  contract,  the 
lex  loci  contractus  governs,  though  with  respect  to  conveyances, 
or  other  contracts  relating  to  real  estate,  the  statutory  regula- 
tions of  the  place  where  such  estate  is  situate,  must  be  observed.* 

Accordingly  a  parol  agreement  made  in  Illinois  to  lease  real 
estate  in  that  State  for  the  term  of  a  year,  to  begin  at  some 
definite  time  in  the  future,  falls  within  the  provisions  of  the 
Illinois  statute  of  frauds,  and  a  suit  to  enforce  the  same  cannot 
be  maintained  in  Indiana  though  the  agreement  is  not  repug- 
nant to  any  provision  of  the  statute  of  frauds  in  the  latter 
State.^ 

1.  Leroux  v.  Brown,  12  C.  B.  N.  Y.  117,  28  Am.  Rep.  116;  Hall- 
801;  Compare  Gibson  v.  Holland,  garten  v.  Oldham,  135  Mass.  1,  46 
L.  R.  1  C.  P.  1.  Am.  Rep.  433;   Gross  v.  Jordan,  83 

2.  Scudder  V.  Bank,  91  U.  S.  406.  Me.    380,    22    A.    250;     Butters    v. 

3.  Pritchard   v.    Norton,    106    U.  Glass,  31  U.  C.  Q.  B.  379. 

S.  124,  1  S.  Ct.  102.  5.  Cochran  v.  Ward,  5  Ind.  App. 

4.  Baltimore,  etc.,  R.  R.  Co.  v.  89,  29  N.  P:.  795,  31  N.  E.  581,  51 
Gienn,  28  Md.  287,  92  Am.  Dec.  Am.  St.  Rep.  229.  See,  also,  An- 
688;  Fox  v.  Matthews,  33  Miss.  derson  v.  May,  10  Heisk.  (Tenn.) 
433;   Wilcox,  etc.,  Co.  v.  Green,  72  84. 


138 


Ch.  4  STATUTE  OF  FRAUDS.  §§  117-119 

ARTICLE  V. 
Promises  by  Executors  and  Administrators. 

Section   117.  Statutory  Provisions. 

118.  Application  of  this  Clause. 

119.  Forbearance. 

120.  The  Special  Promise. 

121.  Original  Consideration. 

§  117.  Statutory  provisions. —  The  fourth  section  of  the 
statute  of  frauds  declares  that  "  no  action  shall  be  brought 
whereby  to  charge  any  executor  or  administrator,  upon  any 
special  promise,  to  answer  damages  out  of  his  own  estate  .  .  . 
unless  the  agreement  upon  which  such  action  shall  be  brought, 
or  some  memorandum  or  note  thereof,  shall  be  in  writing,  and 
signed  by  the  party  to  be  charged  therewith,  or  some  other 
person  thereunto  by  him  lawfully  authorized."  So  to  make  an 
executor  or  administrator  personally  liable  for  the  debt  of  the 
decedent,  his  promise  to  pay  it  must  be  in  writing. 

§  118.  Application  of  this  clause. —  This  clause  of  the 
statute  does  not  apply  to  original  undertakings  by  the  executor 
or  administrator.^  The  statute  only  applies  to  promises  to  an- 
swer for  debts  or  liabilities  of  the  decedent ;  where  an  executor 
or  administrator  has  assets  of  the  estate,  a  promise  by  him,  to 
pay  a  debt  due  by  the  person  he  represents,  is  not  within  the 
statute.^  But  the  possession  of  assets  is  not,  of  itself,  sufficient 
to  charge  him  personally,  as  such  promise,  without  a  new  con- 
sideration.^ 

§  119.  Forbearance. —  Although  tlie  mere  possession  of  as- 
sets by  an  executor  ot  administrator  will  not  be  a  good  consider- 

1.  Taylor    v.    Mygatt,    26    Conn.  2.  Stebbins    v.    Smith,    4    Pick. 

184;     Stebbins    v.    Smith,    4    Pick.  (Mass.)  97 ;  Pratt  v.  Humphrey,  22 

(Mass.)   97;   Williams  v.  Davis,  18  Conn.  317. 

Wis.   184;   In  re  Hummel's  Estate,  3.  Pratt  v.  Humphrey,  22  Conn. 

55  Minn.  315,  56  N.  W.  1064.  317. 

139 


§§  119,  120        FEEEDOM  OF  CONTRACT.  Cb.  4 

ation  to  charge  him  personally  on  such  promise,  a  new  considera- 
tion, such  as  forbearance  to  proceed  against  the  estate  he  rep- 
resents, is  sufficient  for  the  purpose,  although  he  has  no  assets  ;^ 
and  the  same  doctrine  will  apply  as  to  forbearance  in  collecting 
legacies.^  Thus,  the  i^romise  of  an  executor  to  pay  five  thousand 
dollars  to  one  of  the  testator's  heirs-at-law,  who  received  nothing 
under  the  will,  in  consideration  that  he  would  forbear  further 
opposition  to  the  probate  of  the  will,  claimed  to  have  been  made 
as  it  was  through  undue  influence,  is  not  within  the  statute ;  and 
such  forbearance  is  a  sufiicient  consideration.^ 

§  120.  The  special  promise. —  The  special  promise  referred 
to  in  this  section  of  the  statute  is  any  actual  promise  made  by 
an  executor  or  administrator  to  answer  damages  out  of  his  own 
estate.  The  promise  must  be  to  answer  damages  out  of  his  own 
estate. 

This  phraseology  clearly  implies  an  obligation,  duty,  or  lia- 
bility on  the  part  of  the  testator's  estate  for  which  the  executor 
promises  to  pay  damages  out  of  his  own  estate.  The  statute 
was  enacted  to  prevent  executors  or  administrators  from  being 
fraudulently  held  for  the  debts  or  liabilities  of  the  estates  which 
they  were  called  upon  to  administer.  "  To  answer  damages  " 
is  equivalent  "  to  pay  debts  of  the  decedent."'* 

To  be  bound  personally  the  executor's  promise  must  show  the 
intent  as  when  he  adds  "  executor,"  or  in  case  of  administrator, 
he  adds  "  administrator  "  to  his  signature.^ 

1.  Rann  v.  Hughes,  7  Term  R.  3.  Bellows  v.  Sowles,  57  Vt.  164, 
346n;  Parish  v.  Wilson,  Peake,  73;        52  Am.  Rep.  118. 

Barber  v.  Fox,  2  Saund.  136;  Phil-  4.  Browne's   Stat,   of   Frauds,   p. 

pot  V.  Briant,  4  Bing.  717;  Treford  150;  2  Redfield  on  Wills,  p.  290  et 

V.   Holmes,   Hutton,    108;    Palmer's  seq.;  Harrington  v.  Rich,  6  Vt.  666. 

Case,  Hutton,  52;    Porter  v.  Bille,  5.  Treadwell     v.     Herndon,     41 

1    Freem.    125;    Jones  v.   Ashburn-  Miss.   38;    Lockwood  v.   Gilson,    12 

ham,  4  East,  455.  Ohio    St.    526;    Winter   v.    Hite,    3 

2.  Davis  V.  Reyncr,  2  Lev.  3;  Iowa,  142;  Stoudenmeier  v.  Wii- 
Bellows  v.  Sowles,  57  Vt.  164,  52  liamson,  29  Ala.  558.  See,  alco, 
Am.  Rep.  118.  Childs  v.  Monins,  2  Brod.  &  B.  460. 


140 


Ch.    4  STATUTE    OF    FKAUDS.  §    121 

§  121.  Original  consideration. —  When  the  contract  is  found- 
ed upon  a  new  and  distinct  consideration  moving  between  the 
parties,  the  undertaking  is  original  and  independent,  and  not 
within  the  statute.^  It  is  a  principle  of  law  well  sustained  by 
authority,  that  when  the  principal  or  immediate  object  of  the 
promisor  is  not  to  pay  the  debt  of  another,  but  to  subserve  some 
purpose  of  his  own,  the  promise  is  original  and  independent, 
and  not  within  the  statute.^  The  consideration  must  not  only  be 
sufficient  to  support  the  promise,  but  of  such  a  nature  as  to  take 
the  promise  out  of  the  statute ;  and  that  requisite  is  to  be  found 
in  the  fact  that  it  operates  to  the  advantage  of  the  promisor, 
and  places  him  under  a  pecuniary  obligation  to  the  promisee, 
entirely  independent  of  the  original  debt.^ 

The  statute  by  its  terms  operates  on  cases  where  there  is  a 
primary  or  original  debt  or  obligation  upon  which  is  based  a 
collateral  promise  of  another  person,  to  answer  for  such  prim- 
ary or  original  debt  or  obligation.  If  there  be  in  fact  no  sucb 
primary  debt  or  obligation,  or  the  same  is  extinguished  and  dis- 
charged or  if  the  promise  be  not  to  answer  for  such  primary 
debt  or  obligation,  or  if  it  be  a  primary  or  direct  promise  for  a 
sufficient  consideration,  the  statute  does  not  apply  or  require  a 
promise  to  be  in  writiug;  because  the  statute  contemplates  the 
mere  promise  of  one  person  to  be  responsible  for  another  and 
cannot  be  interpreted  as  a  cover  and  shield  against  the  actual 
obligation  of  the  defendant  himself.  If  the  third  person  makes 
an  entire  but  substantial  and  independent  contract  with  the 
creditor  to  perform,  or  some  service,  this  may  be  enforced 
though  not  in  writing,  as  it  is  not  collateral.*  The  object  of  a 
collateral  promise  is  to  promote  the  interest  of  another ;  the  ob- 

1.  Templeton  v.  Bascom,  33  Vt.  641.  See,  also,  Bellows  v.  Sowles, 
132;    Cross    v.    Richardson,    30    Vt.       57  Vt.  1(54,  52  Am.  Rep.  118. 

641;    Forth    v.    Stanton,'   1    Saund.  4.  Yeoman    v.    Mueller,    33    Mo. 

201,  n.  1.  App.    343;    Gale   v.   Harp,   64   Ark. 

2.  Emerson  v.  Slater,  22  How.  462,  43  S.  W.  144;  Crawford  v. 
(U.  S.)  28.  See,  also,  Lampson  v.  Edison,  45  Ohio  St.  239,  13  N.  E. 
Hobart,  28  Vt.  697;  Cross  v.  Rich-  80;  Clifford  v.  Lubring,  69  111.  401; 
ardson,  30  Vt.  641.  Hagadore  v.  Stronach,  81  Mich.  56, 

3.  Cross    V.    Richardson,    30    Vt.  45  N.  W.  650;    Fitzgerald  v.  Mor- 

141 


§§  121,  122        FREEDOM  OF  CONTRACT.  Ch.  4 

ject  of  an  original  promise  is  to  promote  tlie  interest  of  the  party 
making  the  promise.  The  former  is  within  the  operation  of  the 
statute,  the  latter  is  not  affected  by  it.  When  the  promisor  is 
himself  to  receive  the  benefit  for  which  the  promise  is  ex- 
changed, it  is  not  usually  material  whether  the  original  debtor 
remains  liable  or  not.^ 


ARTICLE  VI. 

Promise  to  Answer  for  Another^s  Debt,   Default^   or 

Miscarriage. 

Section  122.  To  Bind  a  Third  Person  for  the  Debt  of  Another. 

123.  Promise— To  Whom  Made. 

124.  When  the  Promise  is  Within  the  Statute. 

125.  Original  Promise. 

126.  Evidence  to  Place  Liability. 

127.  Promise  to  Pay  Debt  on  His  Own  Behalf. 

128.  Benefit  Accruing  to  Promisor. 

129.  Indemnity. 

130.  Release  of  Original  Debtor — Novation. 

131.  Receipt  of  Property  Out  of  Which  to  Pay  the  Debt. 

132.  Contractor  Abandoning  Work. 

§  122.   To  bind  a  third  person  for  the  debt  of  another. —  To 

bind  one  person  for  the  debt  or  default  of  another,  there  must 
not  only  be  a  promise  or  memorandum  in  writing,  but  such 
promise  must  be  made  on  good  consideration.  The  statute 
does  not  vary  the  rule  of  common  law,  as  to  what  constitutes  a 
valid  and  binding  promise ;  to  every  such  promise,  whether  oral 
or  written,  there  must  be  a  good  consideration.     A  promise 

rissey,    14    Neb.    198,    15    N.    233;  72  N.  W.  213;   Compare  Ellison  v. 

Young    V.    French,    35    Wis.     Ill;  Jackson,     12    Cal.    542;     Noyes    v. 

Lemmon     v.     Box,     20     Tex.    329;  Humphreys,    11   Gratt.    (Va.)    635; 

Bayles  v.  Wallace,  56  Hun,  428,  10  Ware  v.  Stephenson,  10  Leach,  155; 

N.  Y.   S.   191;  Jolly  v.  Walker,  26  Puckett  v.   Bates,  4  Ala.  390. 

Ala.    690;    Killbride    v.    Moss,    113  5.  Calkins  v.  Chandler,  36  Mich. 

Cal.  432,  45  P.  812,  54  Am.  St.  Rep.  .']24,  24  Am.  Rep.  593. 
361  :   I^arn  v.  Upstil,  52  Neb.  271, 

142 


oil.    4  STATUTE    OF    FRAUDS.  §    122 

without  consideration  is  had  by  the  common  law  as  nudum 
pactum;  a  promise  on  good  consideration,  without  writini^,  if 
for  the  debt  of  another,  is  had  by  the  statute.  To  bind  one, 
therefore,  for  the  debt  or  default  of  another,  both  must  concur ; 
first,  a  promise  on  good  consideration,  and  secondly,  evidence 
thereof  in  writing.  It  is  not  enough  therefore  that  a  sufficient 
legal  consideration  for  a  promi'se  is  proved,  if  the  object  of  the 
promise  is  the  payment  of  the  debt  of  another  for  his  account, 
and  not  with  a  view  to  any  benefit  to  the  promisor. 

This  liability  may  be  incurred  as  to  a  tort  as  well  as  to  a  con- 
tract.^ The  question  is  said  to  be,  is  the  promise  one  to  answer 
for  the  debt,  default,  or  miscarriage  of  another,  for  which  that 
other  continues  liable ;  if  so  it  must  be  in  writing  to  be  valid.^ 
But  where  one  orally  contracts  a  debt  of  his  own,  the  payment 
of  which  has  the  effect  of  payment  of  another's  debt,  the  statute 
does  apply.^ 

1.  There  must  be  either  a  present  or  prospective  liability  of  a 
third  person  for  which  the  promisor  agrees  to  answer  in  order 
to  come  within  the  statute.  2.  The  liability  of  the  original 
debtor  must  continue.  3.  The  promise  must  be  made  to  the 
creditor.  4.  When  the  promisor  does  not  become  a  surety  or 
guarantor,  and  the  promise  is  to  subserve  some  purpose  of  his 
own,  and  his  promise  is  merely  incidental,  it  is  not  within  the 
statute.  5.  There  must  be  three  parties:  (a)  A  creditor,  (b) 
his  debtor,  and  (c)  a  person  who  guarantees  to  the  former  the 
latter's  debt. 

A  party  who  becomes  responsible  for  goods  sold  to  another, 
and  if  the  goods  are  supplied  entirely  on  the  credit  of  the 
promisor,  so  the  third  party  is  not  liable  at  all,  then  the  promise 
to  pay  is  not  within  the  statute ;  but  whenever  the  third  party 
would  become  liable,  the  contract  must  be  in  writing.^    Where 

1.  Kirkham  v.  Morter,  2  Barn.  3.  Hartley  v.  Varner,  88  111. 
&  Aid.  613.  5G1;    Cahill    v.    Eigelow,    18    Pick. 

2.  Bloom  V.  McGrath,  53  Miss.  (Mass.)  369;  Morrison  v.  Baker, 
249;  Richardson  v.  Robbins,  124  81  N.  Car.  76;  McLendon  v.  Frost, 
Mass.  105;  Laidlou  v.  Hatch,  75  57  Ga.  448;  Webb  v.  Lumber  Co., 
111.   11;   Krutz  v.   Stewart,  54  Ind.  101  Ala.  630,  14  So.  407. 

178.  4.  Lance     v.     Peavce,     101     Ind. 

143 


§§     122,  123  FREEDOM    OF    CONTRACT.  Ch.    4: 

a  third  party  would  become  liable  for  the  property  so  sold  to 
another,  it  is  collateral,  and  the  fact  that  the  creditor  relied 
chiefly  upon  the  promise  will  make  no  difference.  If  the  credit 
is  given  to  a  third  party  instead  of  the  promisor,  then  it  is 
within  the  statute,  if  such  is  the  contract  where  one  agrees  to  pay 
the  debt  of  another.^  If  the  credit  is  given  to  the  person  to 
whom  the  goods  are  delivered,  the  promise  of  a  third  person  to 
pay  for  them,  though  made  at  the  same  time,  is  a  promise  to 
pay  the  debt  of  another,  and  is  within  the  statute.®  And  when 
the  sale  of  goods  is  upon  joint  credit,  the  promise  of  two,  though 
the  property  is  purchased  for  and  delivered  to  but  one,  the  legal 
effect  as  between  them  and  the  vendor,  is  a  sale  to  the  two  jointly. 
Such  promise  is  an  original  one,  and,  therefore,  not  within  the 
statute.' 

So  the  promise  to  answer  for  the  torts  of  another  comes  with- 
in the  statute  of  frauds,  and,  therefore,  must  be  in  writing. 
Thus,  where  a  party  has  converted  the  goods  of  another,  an  oral 
promise  to  answer  for  such  tort  by  a  third  person  is  void.^  So, 
where  a  hirer  of  a  horse  rides  it  to  death,  an  oral  promise  by  a 
third  person  to  pay  the  damages  to  the  owner  is  not  binding,  as 
it  comes  within  the  statute  of  frauds,  under  the  words  "mis- 
carriage" and  "  default."  ^ 

§  123.  Promise  to  whom  made. —  To  bring  a  promise  within 
the  statute  it  must  be  made  to  the  person  entitled  to  enforce  the 

595;    Walker    v.    Hill,    119    Mass.  6.  Hetfield  v.  Down,  27  N.  J.  L. 

249 ;  Sutherland  v.  Carter,  52  Mich.  440. 

151,   471,    17   N.    780,    18    N.    223;  7.  Stone    v.     Walker,     13     Gray 

(jrant  v.  Wolf,  34  Minn.  32,  24  N.  (Mass.),  612;   Gibbs  v.  Blanchard, 

W.  289;   West  v.  O'Harra,  55  Wis.  12    Mich.    292,    86    Am.    Dec.    52; 

645,  13  N.  894.  Boyce  v.  Murphy,  91  Ind.  1,  46  Am. 

5.  Welch  V.  Marvin,  36  Mich.  59;  Eep.  567;  Rottman  v.  Fix,  25  Mo. 

Radcliff  V.  Poundstone,  23  W.  Va.  App.  571. 

724;  Wills  V.  Ross,  77  Ind.  1;   Ca-  8.     Turner    v.    Hubbell,    2    Day 

hill   V.    Eigelow,    18    Pick.    (Mass.)  (Conn.),  457,  2  Am.  Dec.  115. 
369;    Bugbee    v.    Kendrickson,    130  9.  Kirkham   v.    Morter,    2    B.    & 

Mass.  437;   Cole  v.  Hutchinson,  34  Aid.    613,    distinguishing    Reed    v. 

Minn.  410,  24  N.  W.  289;    Cowdin  Nash,  1  Wilson,  305. 
V.  Cottgetren,  55  N.  Y.  650. 

144 


Ch.  4  STATUTE  OF  FRAUDS.  §§  123,  124 

liability  assumed  by  the  promisor;^  for  a  promise  not  made  to 
the  person  entitled  to  enforce  the  liability  assumed  by  the  prom- 
isor is  not  within  the  statute.^ 

An  English  case,  Green  v.  Cresswell,^  holds  an.  opposite  doc- 
trine, but  can  no  longer  be  regarded  as  the  law  in  England  as 
appears  from  several  later  cases.* 

The  promise  must  be  to  the  creditor,  and  not  to  the  debtor. 
So  if  one  upon  a  sufficient  consideration  arranges  with  the 
debtor  to  pay  his  debt,  but  not  with  the  creditor,  this  is  valid 
though  not  in  writing.^ 

Where  the  purpose  of  a  person  who  agrees  to  pay  the  debt  of 
another  is  to  gain  some  advantage  or  promote  some  interest  or 
design  of  his  own,  and  not  to  become  a  mere  guarantor  or  surety 
for  another's  debt,  and  the  promise  is  made  on  a  sufficient  con- 
sideration, it  will  be  valid,  although  not  in  writing.^ 

§  124.  When  the  promise  is  within  the  statute. —  In  order 
that  the  promise  may  be  held  to  be  within  the  statute,  it  is  es- 
sential that  there  is  to  be  a  binding  and  substantial  obligation 
or  liability  to  the  promisee  to  which  the  promise  is  collateral. 
The  party  for  whom  the  promise  has  been  made  must  be  liable 

1.  Tighe  V.  Morrison,  116  N.  Y.  3.  10  Ad.  &  El.  453. 

263,  22  N.  E.  164,  5  L.  R.  A.  617  4.  Fitzgeral  v.  Dressier,  6  C.  B., 

and  note.  N.  S.  374;   Reader  v.  Kingham,   13 

2.  Smith  V.  Sayward,  5  Me.  504;  C.  B.,  N.  S.  344;  Batson  v.  King,  4 
Jones  V.  Shorter,  1  Ga.  294,  Hurl.  &  N.  739;  Cripps  v.  Hartnall, 
44  Am.  Dec.  649;  Aldrich  v.  4  Best  &  S.  414;  Wildes  v.  Dudlow, 
Ames,  9  Gray    (Mass.),  76;   Cripps  L.  R.  19  Eq.  Gas.  198. 

V.    Hartnall,    4    Best    &    S.    414,  5.  Center  v.  McQuesten,  18  Kan. 

10  Jur.,  N.  S.  200;  Reader  v.  King-  476;  Eastwood  v.  Kenyon,  11  Ad.  & 

ham,   13  C.  B.,  N.  S.  344;   Thomas  El.  438. 

V.  Cook,  8  Barn.  &  Cress.  728;  Har-  6.  Ames  v.  Foster,  106  Mass.  400, 

rison  v.  Sawtel,  10  Johns.-  (N.  Y.)  8  Am.  Rep.  343;  Nelson  v.  Boynton, 

242,  6  Am.  Dec.  337;  Barry  v.  Ran-  3   Met.    (Mass.)    396,   37   Am.   Dec. 

eom,  12  N.  Y.  462;  Mallory  v.  Gil-  148;     Fullman    v.    Adams,    37    Vt. 

lett,  21  N.  Y.  412;   Sanders  v.  Gil-  391;  Clapp  v.  Webb,  52  Wis.  638,  9 

lespie,  59  N.  Y.  250,  252;  McCraith  N.  796;   Fitzgerald  v.  Morrissey,  14 

V.   Bank,   104   N.  Y.  414,   10  N.   E.  Keb.    198,    15    N.    233;    Cliflford   v. 

862;  Compare  Kingsley  v.  Balcome,  Luhring,  69  111.  401. 
4  Barb.    (N.  Y.)    131. 

145 


§    124  FREEDOM    OF    CONTRACT,  Ch.    4 

to  the  part  J  to  whom  it  is  made.^  For  unless  it  appears  that 
some  person  other  than  the  promisor  has  incurred  an  actual 
liability  with  respect  to  the  subject-matter  of  the  promise,  the 
agreement  is  not  within  the  statute,  although  the  third  person 
may  be  under  an  imperfect  or  merely  moral  obligation  to  re- 
spond.^ 

For  if  the  other  party  be  not  liable  to  answer,  it  cannot  be 
said  that  the  undertaking  of  the  promisor  is  one  to  answer  for 
the  former's  debt  or  default,  and  therefore  within  the  statute. 
There  being  no  liability  on  the  other  party  to  the  promisee,  the 
promisor  would  have  nothing  to  answer  for,  and  his  promise, 
therefore,  will  necessarily  be  an  original  and  independent 
undertaking  and  not  a  collateral  one.^ 

An  oral  acceptance  of  an  order  in  existence  is  not  within  the 
statute,  because  acceptor  simply  agrees  to  pay  his  own  debt 
to  those  persons  to  whom  his  creditors  request  him  to  pay.* 
And  a  promise  to  pay  for  services  already  rendered  is  not  valid 
as  to  such  services,  because  not  in  writing.^  A  verbal  accept- 
ance of  a  bill  of  exchange  in  existence  or  other  order  for  the 
payment  of  money  is  not  within  the  statute.®    Unless  forbidden 

1.  Hargreaves  v.  Parsons,  13  3.  Resseter  v.  Waterman,  151  111. 
Mees.    &    Wels.    561;     Resseter    v.        169,  37  N.  E.  875. 

Waterman,   151   111.   169,   37   N.  E.  4.  Lavell  v.  Frost,  16  Mont.  93, 

875;    Eastwood  v.   Kenyon,    11   Ad.  40  P.  146. 

&  El.  438;   Westfall  v.  Parsons,  16  5.  Malone  v.  Ice  Co.,  88  Wis.  542, 

Barb.  (N.  Y.)  645;  Prebble  v.  Bald-  60  P.  999. 

win,   6    Cush.    (Mass.)    549;    Pratt  6.  Short   v.    Blount,   99   N.    Car. 

V.  Humphrey,  22  Conn.  317;  Alger  49;  Bruner  v.  Nisbett,  31  111.  App. 

V.   Scoville,   1   Gray    (Mass.),   391;  517;  Neuman  v.  Schroeder,  71  Tex. 

Baker  v.  Bucldin,  2  Denio  (N.  Y.),  81,  8  S.  W.  632.     See,  also,  Martyn 

45,  43  Am.  Dee.  726  and  note;  Per-  v.  Arnold,  36  Fla.  446,   18  So.  91; 

kins  V.  Littlefield,  5  Allen   (Mass.),  Magnon   v.    Clay,    1    A.    K.    Marsh. 

370;  Tighe  v.  Morrison,  116  N.  Y.  (Ky.)    189;   Chase  v.  Trafford,  116 

263,  22  N.  E.   164,  5  L.  R.  A.  617  Mass.   529;    Strickland   v.    Hamlin, 

and  note.  87  Me.  81,  32  A.  732;   Harbele  v. 

2.  Downey  v.  Hinchman,  25  Ind.  O'Day,  61  Mo.  App.  390;  Bixby  v. 
453;  Read  v.  Nash,  1  Wilson,  305;  Church,  28  Oreg.  242,  42  P.  613; 
Smith  V.  Mayo,  1  Allen  (Mass.),  Putnam  Machine  Co.  v.  Cann,  173 
160;  Tighe  v.  Morrison,  116  N.  Y.  Pa.  St.  392,  34  A.  67;  Spear  v. 
263,  22  N.  E.  164,  5  L.  R.  A.  617  Bank,  156  111.  555,  41  N.  E.  164; 
and  note.  Amont  v.   Christoff'erson,   57   Minn. 

146 


Ch.  4  STATUTE  OF  FRAUDS,  §§  124,  125 

by  statute,  it  is  the  rule  of  general  law,  that  a  promise  to  accept 
an  existing  bill  is  an  acceptance  thereof,  whether  the  promise 
be  in  writing  or  by  parol.'  But  an  agreement  to  accept  drafts 
and  orders  to  be  drawn  must  be  in  writing  where  the  drawee  has 
no  funds  of  the  drawer  to  disburse.^ 

§  125.  Original  promise. —  The  sale  of  goods  to  one  at  the 
request  and  on  the  sole  credit  of  another,  renders  the  promise 
to  pay  an  original  promise  and  takes  the  case  out  of  the  statute.^ 

Where  the  leading  object  of  the  promisor  is  to  subserve  some 
interest  or  purpose  of  his  own,  notwithstanding  the  effect  is  to 
pay  or  discharge  the  debt  of  another,  the  promise  is  not  within 
the  statute  and  need  not  be  in  writing.^ 

Where  the  credit  is  given  entirely  to  one  party  and  the  sale 
of  goods  is  in  fact  to  that  party,  though  they  are  delivered  to 
and  used  by  another  party,  the  statute  does  not  apply;  and  in 
such  case  the  oral  promise  of  the  first  party  is  not  an  agreement 
to  answer  for  the  debt  of  another,  but  an  original  promise,  upon 
which  a  cause  of  action  may  be  alleged  and  proved  Avithout  a 
writing.^     But  if  the  person  for  whose  use  the  goods  are  fur- 

234,  59  N.  W.  304;  Collins  v.  Stan-  311,  56  N.  W.  890;  Morris  v.  Oster- 

field,   139  Ind.   184,  38  N.  E.  1091;  liout,  55  Mich.  262,  21  X.  W.  339; 

Lesserrich  v.  Pettit,  91   Iowa,  609,  Calahan  v.  Ward,  45  Kan.  545,  26 

60  N.  VV.   192;   Brown  v.  Bank,  88  P.    53;    Baldwin   v.    Hiers,    73    Ga. 

Tex.  265,  31  S,  VV.  285,  33  L.  R.  A.  739;    Clark  v.  Jones,  87  Ala.   474, 

359   and  note;    Fain  v.  Turner,  96  6  So.  352;  Lance  v.  Pearce,  101  Ind. 

Ky.  634,  29  S.  W.  628.  595. 

7.  Scudder    v.    Bank,    91    U.    S.  2.  Hind    v.    Holship,    2    Watts. 
406;  Wynne  V.  Raikes,  5  East,  514;  (Pa.)      104,     26     Am.     Dec.     107 
How  V.   Loring,   24   Pick.    (Mass.)  Willis    v.    Cutter,    61    N.    H.    405 
254;    Bank  v.   Archer,    11   Mees.   &  Clifford    v.    Luhring,    69    111.    401 
W.  383.  Leonard    v.    Vredenberg,    8    Johns. 

8.  Upham  v.  Clute.  105  Mich.  (N.  Y.)  28;  Greene  v.  Burton,  59 
350,  63  N.  W.  317.  Vt.  423;   Lemmon  v.   Box,  20  Tex. 

1.  Collins  V.   Stanfield,    139   Ind.  329;   Katzmyer  v.  Ennis,  27   N.  J. 

184,   38    N.    E.    1091;    Lessenick   v.  L.  376;  Emerson  v.  Slater,  22  How. 

Pettit,  91  Iowa,  609,  60  N.  W.  192;  (U.    S.)    43;    Fitzgerald  v.   Morris- 

Nesbit  V.   Works,   22   Nev.   260,   38  sey.  14  Neb.  198,  15  N.  233. 

P.  670;  Hartley  v.  Varner,  88  111.  3.  Mackey    v.    Smith,    21    Oreg. 

561;    Barras   v.    Coal    Co.,   38   Neb.  398,  28  P.  974;  Boston  v.  Farr,  148 

14Y 


§§  125-127 


FKEEDOM    OF    CONTKACT. 


Ch.  4 


nished  be  at  all  liable,  any  promise  by  a  third  person  to  pay  for 
them  must  be  in  writing,  as  such  an  agreement  is  within  the 
statute.* 

§  126.  Evidence  to  place  liability. —  Book  accounts,  though 
competent,  are  not  conclusive  that  the  vendor  relied  upon  the 
party  charged  to  pay  for  them,  but  such  evidence  is  opened  to 
explanation  by  showing  as  a  matter  of  fact  to  whom  the  credit 
was  given.  It  is  for  the  jury  to  judge  upon  all  the  evidence,  to 
whom  the  credit  was  given,  and  whether  the  agreement  of  the 
defendants  is  original  or  collateral.^  Charges  made  on  books 
are  evidence,  but  may  be  explained,  and  is  for  the  jury  to  say 
to  whom  credit  was  given.^ 


§  127.  Promisor  to  pay  debt  on  his  own  behalf. —  The  ques- 
tion often  arises  whether  a  party  who  promises  to  pay  the  debt 
of  the  person  who  first  owed  and  still  owes  it,  for  a  considera- 
tion passing  to  that  person,  is  to  be  regarded  as  promising  to 


Pa.  St.  220,  23  A.  901;  Greene  v. 
Burton,  59  Vt.  423 ;  Nelson  v.  Boyn- 
ton,  3  Met.  (Mass.)  396,  37  Am. 
Dec.  148;  Higgins  v.  Hallock,  60 
Hun  (N.  "if.),  125,  14  N.  Y.  S.  550; 
Meyer  v.  Graffin,  31  Md.  350,  100 
Am.  Dee.  66;  Peyson  v.  Conniff,  32 
Neb.  269,  49  N.  W.  340;  Ellis  v. 
Murray,  77  Ga.  542;  Grant  v.  Wolf, 
34  Minn.  32,  24  N.  W.  289. 

4.  Wallace  v.  Wortham,  25  Miss. 
119,  57  Am.  Dec.  197;  Andre  v. 
Bodman,  13  Md.  241,  71  Am.  Dec. 
28;  Whittemore  v.  Wentworth,  76 
Me.  20;  Willard  v.  Bosshard,  68 
Wis.  545,  32  N.  W.  538;  Gump  v. 
Halberstadt,  15  Oreg.  356,  15  P. 
407 ;  Packer  v.  Benton,  35  Conn. 
343,  95  Am.  Dec.  246  and  note; 
Cole  V.  Hutchinson,  34  Minn.  410, 
20  N.  W.  319;  Studley  v.  Bortli,  54 
Mich.  6,  19  N.  568;  Morrissey  v. 
Kinsey,    16   Neb.    11,    19    N.    454; 


Langdon  v.  Richardson,  58  Iowa, 
610,  12  N.  622;  Harris  v.  Frank, 
81  Cal.  280,  22  P.  856;  Chappel  v. 
Barkley,  90  Mich.  35,  51  N.  W. 
644;  Bice  v.  Building  Asso.,  96 
Mich.  24,  55  N.  W.  382;  Beubow  v. 
Soothsmith,  76  Iowa,  154,  40  N.  W. 
693;  Dougherty  v.  Bash,  167  Pa. 
St.  429,  31  A.  729;  Walker  v.  Ir- 
win, 94  Iowa,  448,  62  N.  W.  785; 
Howell  V.  Field,  70  Ga.  592;  Teet- 
ers V.  Lamborn,  43  Ohio  St.  144,  1 
N.  E.  513. 

1.  Walker  v.  Richards,  41  N.  H. 
391 ;  Barrett  v.  McHugh,  128  Mass. 
165. 

2.  Larsen  v.  Jensen,  53  Mich. 
427,  19  N.  130;  Burphalter  v. 
Farmer,  5  Kans.  477;  Champion  v. 
Doty,  31  Wis.  100;  Maurin  v. 
Fogelbeyer,  37  Minn.  23,  32  N.  W. 
858,  5  Am.  St.  Rep.  814;  Hazen  v. 
Bearden,  4  Sneed    (Tenn.),  50. 


148 


Ch.  4:  STATUTE  OF  FKAUDS.  §§  127,  128 

pay  on  his  own  behalf  or  on  the  original  debtor's  behalf.  In 
such  case,  if  the  debt  is  payable  on  his  own  behalf  the  promise 
may  be  verbal.     If  not,  then  it  must  be  in  writing.^ 

Thus,  when  by  the  release  of  property  from  a  lien,  the  prom- 
isor is  to  pay  the  debt  so  as  to  enable  him  to  apply  the  property 
to  his  own  benefit,  the  release  inures  to  his  o^vn  advantage, 
and  it  is  evident  that  a  promise  to  pay  the  debt  in  order  to  ob- 
tain the  release  may  be  regarded  as  made  on  his  own  behalf,  and 
not  on  behalf  of  the  original  debtor,  and  any  possible  advantage 
to  the  latter  is  merely  incidental  and  is  not  the  thing  bargained 
for.  That  promise  is,  therefore,  in  no  proper  sense  a  promise  to 
answer  for  anything  but  for  the  promisor's  own  responsibility, 
and  need  not  be  in  writing.  And  so  when  a  person  sells  a  claim 
and  guarantees  its  payment,  the  guaranty  is  collateral  to  bis 
ow'n  contract,  and  is  not  intended  for  the  debtor's  advantage.* 

§  128.  Benefit  accruing  to  promisor. —  The  promise  of  one 
person,  though  in  form  to  answer  for  the  debt  of  another,  if 
founded  upon  a  new  and  sufficient  consideration,  moving  from 
the  creditor  and  promisee  to  the  promisor,  and  beneficial  to  the 
latter,  is  not  within  the  statute  of  frauds,  and  need  not  be  in 
writing.-^  A  consideration  to  support  a  promise  not  in  writing 
to  pay  the  debt  of  another  must  be  of  a  peculiar  character,  and 
must  operate  to  the  advantage  of  the  promisor,  placing  him 
under  a  pecuniary  obligation  to  the  promisee  independent  of 

3.  Corkins   v.    Collins,    16   Mich.  29    S.  W.   628;    Green  v.   Hadfield, 
478.  89  Wis.  138,  61  N.  W.  310;   Keyes 

4.  Leonard  v.  Vredenburg,  8  v.  Maynard,  65  Vt.  667,  27  A.  319. 
Johns.  (N.  Y.)  29,  5  Am.  Dec.  317  1.  Mallory  v.  Gillett,  21  N.  Y. 
and  note;  Nelson  v.  Boynton,  3  412;  Cornell  v.  Electric  Co.,  61  111. 
Met.  ( Mass. )  396,  37  Am.  Dec.  148 ;  App.  325 ;  Brownell  v.  Harsh,  29 
Mallory  v.  Gillett,  21  N.  Y.  412;  Ohio  St.  631;  Bailey  v.  Marshall, 
White  V.  Rintoul,  108  K  Y.  22,  15  174  Pa.  St.  602,  34  A.  326;  Van 
N.  E.  318;  Calkins  v.  Chandler,  36  Doren  v.  Tjader,  1  Nev.  118;  Fisk  v. 
Mich.  320,  24  Am.  Rep.  593;  Bice  Reser,  19  Colo.  88,  34  P.  572; 
V.  Building  Asso.  96  Mich.  24,  55  Calkins  v.  Chandler,  36  Mich.  320, 
X.  W.  382;  McLauglilin  v.  Austin,  24  Am.  Rep.  593;  Clapp  v.  Webb, 
104  Mich.  489,  62  N.  W.  719.  See,  52  Wis.  638,  9  N.  796;  Lamb  v. 
also.   Fain   v.   Turner,   93  Ky.   634,  Tucker,   42   Iowa,    118;    Hawkes   v. 

149 


§  128 


FEEEDOM    OF    CONTRACT. 


Ch.  4 


the  original  debt,  and  which  obligation  is  to  be  discharged  bj 
the  payment  of  that  debt.^ 

In  such  case  the  debt  has  become  that  of  the  new  party  prom- 
ising ;  his  promise  is  not  to  pay  the  debt  of  another,  but  his  own ; 
as  between  him  and  the  primary  debtor  the  latter  has  become 
practically  a  surety  entitled  to  require  the  payment  to  be  mad& 
by  the  transferee.  The  consideration  of  the  primary  debt,  by 
the  transfer  of  the  money  or  property  into  which  that  considera- 
tion had  been  in  effect  merged,  may  be  said  to  have  been  shifted 
over  to  the  new  promisor,  who  thereby  becomes  under  a  duty  of 
payment  as  obvious  as  if  such  original  consideration  had  passed 
directly  to  him.^  So,  if  a  person  guaranties  a  debt  in  considera- 
tion of  a  release  of  a  lien,  or  forbearance  to  file  it,  the  guar- 
anty need  not  be  in  writing  as  held  by  many  courts  ;*  but  if  the 
liability  of  the  debtor  continues,  the  agreement  comes  within  the 
statute  as  generally  held  by  the  cases. ^ 


Phillips,  7  Gray  (Mass.),  284; 
Lincoln  v.  Kinzey,  51  111.  435; 
Hayden  v.  Weldon,  43  N.  J.  L.  128, 
39  Am.  Rep.  551  and  note;  Fitz- 
gerald V.  Morrissey,  14  Neb.  198, 
15  N.  324;  Perkins  v.  Catlin,  11 
Conn.  230;  Fuller  v.  Scott,  8  Kans. 
25;  Bateman  v.  Butler,  124  Ind. 
223,  24  N.  E.  989 ;  Schafer  v.  Bark, 
59  Pa.  St.  148,  93  Am.  Dec.  323; 
Nichols  V.  Allen,  23  Minn.  542; 
Schneider  v.  Schiffman,  20  Mo. 
571;  Mathews  v.  Seaver,  34  Neb. 
592,  52  N.  W.  283;  Garvey  v. 
Crouch,  35  S.  W.  273,  18  Ky.  L.  R. 
84;  Muller  v.  Riviere,  59  Tex.  640, 
46  Am.  Rep.  291;  Williams  v. 
Leper,  3  Burr.  1886;  Joseph  v. 
Smith,  39  Neb.  259,  57  N.  W.  1002, 
42  Am.  St.  Rep.  571. 

2.  Ackley  v,  x'almenter,  98  N.  Y. 
425,  56  Am.  Rep.  693;  Cross  v. 
Richardson,  30  Vt.  641;  McKenzie 
V.  Bank,  9  Wash.  442,  37  P.  668,  3 
Am.  St.  Rep.  844;  Rushing  Reduc- 
tion Co.  V.  Hilliard,  92  Ga.  555,  17 


S.  E.  848;  Ivenson  v.  Caldwell,  3 
Wyo.  465,  2  P.  23ei. 

3.  First  National  Bank  v. 
Chalmers,  144  N.  Y.  432,  39  N.  E. 
331. 

4.  Smith  V.  Bank,  110  Pa.  St. 
508,  1  A.  760;  Wells  v.  Brown,  118 
Mass.  138;  Scott  v.  White,  71  111. 
287;  Power  v.  Rankin,  114  111.  52, 
29  N.  E.  185;  Crawford  v.  King,  54 
Ind.  6;  Wooten  v.  Wilcox,  87  Ga. 
474;  Rogers  v.  Hardware  Co.,  24 
Neb.  653,  39  N.  W.  844;  Prime  v. 
Koehler,  77  N.  Y.  91;  Shook  v. 
Vanmeter,  22  Wis.  507. 

5.  Warner  v.  Willoughby,  60 
Conn.  468,  22  A.  1014,  25  Am.  St. 
Rep.  243;  Curtis  v.  Brown,  5  Cush. 
(Mass.)    488;    Stewart    v.    Jerome, 

71  Mich.  201,  38  N.  W.  895,  15  Am. 
St.  Rep.  ^43;  Bunneman  v.  Wagner, 
16  Oreg.  433,  18  P.  841,  8  Am.  St. 
Rep.  306;  Clark  v.  James,  85  Ala. 
127,  4  So.  771;  Simpson  v.  Harris, 
21  Nev.  353,  13  P.  1009. 


150 


Ch.  4: 


STATUTE  OF  FKAUDS. 


j§  128,  129 


A  holder  of  a  note  who  verbally  guaranties  it  in  order  to  sell 
it,  is  liable  on  such  guaranty.^  And  the  guaranty  of  the  sol- 
vency of  a  party  by  an  agent  who  sells  his  principal's  goods,  is 
not  within  the  statute.^ 

The  statute  of  frauds  in  relation  to  the  liability  of  an  as- 
signor of  a  promissory  note,  is  not  applicable  to  cases  where  a 
guaranty  accompanies  the  assignment.^  The  assignor  owes  the 
assignee,  and  that  particular  mode  of  paying  him  is  adopted. 
He  guarantees,  in  substance,  his  own  debt.  Though  the  debt  of 
a  third  person  is  incidentally  guaranteed,  it  is  not  necessary  that 
the  contract  shall  be  in  writino-.^ 


§  129.  Indemnity. —  In  some  States  where  the  promise  is 
one  of  indemnity  and  not  of  guarantee,  it  need  not  be  in  writ- 
ing,^ Where  one  person  induces  another  to  enter  into  an  en- 
gagement by  a  promise  to  indemnify  him  against  liability,  that 
is  not  an  agreement  within  the  statute,  and,  therefore,  is  not 
required  to  be  in  writing.^    But  it  is  otherwise  in  other  States 


6.  Darst  v.  Bates,  95  111.  493; 
Milks  V.  Rich,  80  N.  Y.  269,  36  Am. 
Rep.  615. 

7.  Sherwood  v.  htone,  14  N.  Y. 
267;  Swan  v.  Nesmith,  7  Pick. 
(Mass.)  220,  19  Am.  Dec.  282; 
Couturier  v.  Hastie,  5  H.  L.  Cas. 
673. 

8.  Darst  v.  Bates,  95  111.  493; 
Smith  V.  Finch,  2  Scam.  (111.) 
321. 

9.  Darst  v.  Bates,  69  111.  493; 
Wilson  V.  Hentges,  29  Minn.  102,  12 
N.  151;  Garden  v.  McNeil,  21  N.  Y. 
330;  Melone  v.  Keener,  44  Pa.  St. 
107 ;  Barker  v.  Scudder,  56  Mo. 
272;  Beaty  v.  Grim,  18  Ind.  131; 
Thoman  v.  Dodge,  8  Mich.  50;  Wy- 
man  v.  Goodrich,  26  Wis.  21 ;  Com- 
pare Dows  V.  Sweet,  IZO  Mass.  322, 
127  Mass.  66i,  134  Mass.  140,  45 
Am.  Rep.  310;  Har singer  v.  New- 
man, 83  Ind.  124,  43  Am.  Rep.  64. 


1.  Commercial  F.  Ins.  Co.  v. 
Morris,  105  Ala.  498  18  So.  762; 
Guild  V.  Conrad  (1894),  2  Q.  B. 
885 ;  Thomas  v.  Cook,  8  Barn.  &  Cr. 
728;  Fidelity,  etc.,  Co.  v.  Lawlor, 
64  Minn.  144,  06  N.  W.  143 ;  Wildes 
V.  Dudlow,  L.  R.  19  Eq.  198. 

2.  Wildes  v.  Dudlow,  L.  R.  19 
Eq.  198;  Hargreaves  v.  Parsons,  13 
Mees.  &  Wels.  561;  Aldrich  v. 
Ames,  9  Gray  (Mass.),  76;  Dunn 
V.  West,  5  B.  Mon.  (Ky.)  376;  Mills 
V.  Brown,  11  Iowa,  314;  Holmes  v. 
Knights,  10  N.  H.  175;  Harrison  v. 
Sawtel,  10  Johns.  (N.  Y.)  242,  6 
Am.  Dec.  337;  Sanborn  v.  Merrill, 
41  Me.  467;  Blount  v.  Hawkins,  19 
Ala.  100;  Flemm  v.  Whitmore,  23 
Mo.  430;  Stark  v.  Raney,  18  Cal. 
622;  Marcy  v.  Crawford,  16  Conn. 
549,  41  Am.  Dec.  158;  Bohannon  v. 
Jones,  30  Ga.  488;  Soule  v.  Albee, 
31    Vt.    142;    Lerch   v.    Gallop,    67 


151 


§  129 


FKEEDOM    OF    CONTEACT. 


Ch.  4 


where  the  promise  to  indemnify  the  promisee  against  any  loss 
he  may  sustain  by  reason  of  the  default  or  miscarriage  of  a  per- 
son under  liability  to  him;  in  this  case  the  promise  is  within 
the  statute  f  but  a  mere  indemnity  is  not.* 

The  law  will  not  enforce,  it  seems,  an  express  agreement  to 
indemnify  bail  by  the  principal,  as  it  would  be  against  public 
policy,^  So,  where  the  principal  has  deposited  money  to  in- 
demnify the  bail,  and  is  exonerated,  he  cannot  recover  it,  as  the 
contract  was  illegal  and  the  courts  will  not  interfere.^  However, 
a  third  party  may  indemnify  the  bail,  which  they  may  recover, 
as  it  is  not  an  illegal  contract.^  And  such  contract  of  indemnity 
by  a  third  party  need  not  be  in  writing,  as  the  bail  is  not  given 
for  the  purpose  of  answering  for  the  debt  of  another  as  in  a 
civil  action,  so  the  statute  does  not  apply.^  In  some  States  in- 
demnity to  bail  is  allowed  by  statute,  then  it  is  a  valid  contract.® 


Cal.  595;  Keesling  v.  Frazier,  119 
Ind.  185,  21  N.  E.  552;  Smith  v. 
Delaiiey,  64  Conn.  264,  29  A.  416, 
42  Am.  St.  Rep.  181  and  note;  Barry 
V.  Ransom,  12  N.  Y.  462;  Anderson 
V.  Spencer,  72  Ind.  315,  37  Am.  Rep. 
162. 

3.  Clements'  Appeal,  52  Conn. 
464;  Nugent  v.  Wolfe,  111  Pa.  St. 
471,  4  A.  15,  56  Am.  Rep.  291; 
Cheesman  v.  Wiggins,  122  Ind.  352, 
23  N.  E.  945;  Easter  v.  White,  12 
Ohio  St.  219;  Walberton  v.  Davis, 
85  Va.  64,  6  S.  E.  619,  17  Am.  St. 
Rep.  56;  Mallony  v.  Gillett,  21  N. 
Y.  412;  Ferrell  v.  Maxwell,  28 
Ohio  St.  383,  22  Am.  Rep.  393; 
Bissig  V.  Briton,  59  Mo.  204,  21  Am. 
Rep.  379;  Green  v.  Cressvvell,  10 
Ad.  &  El.  453;  May  v.  Williams,  61 
Miss.  125,  48  Am.  Rep.  80;  De- 
meritt  v.  Hickford,  58  N.  H.  523; 
Anderson  v.  Spence,  72  Ind.  315,  37 
Am.  Rep.  162;  Draughan  v.  Bunt- 
ing, 9  Ired.  (N.  Car.)  10;  Simpson 
V.    Nance,    1    Spear.     (S.    Car.)    4; 


Compare  Lerch  v.   Gallop,   67   Cal. 
595,  3  P.  322. 

4.  George  v.  Hoskins,  30  S.  W. 
406,  17  Ky.  L.  R.  63;  Jones  v. 
Bacon,  145  N.  Y.  446,  40  N.  E.  216; 
Boyer  v.  Soules,  105  Mich.  31,  62 
N.  W.  1000;  Croft  v.  Ins.  Co.,  40 
W.  Va.  508,  21  S.  E.  854,  52  Am. 
St.  Rep.  902;  Minich  v.  Huff,  41 
Neb.  616,  59  N.  W.  795. 

5.  Jones  v.  Orchard,  16  C.  B. 
614;  Harp  v.  Osgood,  2  Hill  (N. 
Y.),  375. 

6.  Dunkin  v.  Hodge,  46  Ala.  523 ; 
Herman  v.  Jeuchner,  15  Q.  B.  Div. 
561. 

7.  People  V.  Ingersoll,  14  Abb. 
Pr.  N.  S.  23;  Stevens  v.  Hay,  61 
111.  399;  Harp  v.  Osgood,  2  Hill  (N. 
Y.),  216. 

8.  Cripps  V.  Hartnoll,  4  B.  &  S. 
414;  Anderson  v.  Spencei",  27  Ind. 
315. 

9.  Maloney  v.  Nelson,  158  N.  Y. 
351,  53  N.  E.  31;  Simpson  v.  Rob- 
ert, 35  Ga.  180. 


152 


Ch.    4  STATUTE    OF    FliAUDS.  §§    129-131 

Where  no  authority  is  given  by  statute  to  take  money  in  place 
of  bail,  a  deposit  of  money  so  taken  is  illegal  and  cannot  be  re- 
covered back/°  but  it  should  be  paid  into  the  county  treasury 
just  as  if  collected  on  a  recognizance.^^ 

§  130.  Release  of  original  debtor  —  Novation. —  Where  the 
verbal  promise  to  accept  an  order  is  in  effect  a  promise  to  dis- 
burse funds  by  the  drawee  for  the  purpose,  or  where  the  accept- 
ance is  conditional  on  having  funds  of  the  drawee  on  hand,  such 
verbal  promise  is  enforceable.^  But  where  there  is  no  agree- 
ment to  disburse  funds  belonging  to  the  drawer  by  the  drawee, 
the  case  comes  within  the  statute,  and  an  agreement  to  accept 
drafts  and  orders  must  be  in  writing.^ 

An  agreement  for  a  full  consideration  to  pay  the  debt  of  an- 
other, where  the  original  debtor  is  released  and  a  new  promisor 
is  accepted  as  the  sole  debtor,  is  not  within  the  statute.^  So,  a 
promise  whereby  a  debtor  agrees  to  pay  his  debt  to  a  third  per- 
son to  whom  his  creditor  is  indebted,  is  not  within  the  statute, 
being  a  contract  of  novation.^  And  so  when  the  contract  is  not 
collateral  but  a  substituted  contract,  it  is  not  within  the  statute.^ 

§  131.    Receipt  of  property  out  of  which  to  pay  the  debt. — • 

Where  a  person  being  under  no  legal  obligation  to  do  so,  trans^ 
fers  a  claim  to  another  upon  the  oral  condition  that  the  assignee 
will,  out  of  the  moneys  collected  therefrom,  pay  the  indebte'dness 
of  the  assignor  to  a  third  person,  and  the  assignment  is  accepted 
upon  that  condition,  the  promise  is  not  voidable  under  the  stat- 
ic. Smart  v.  Cason,  50  111.  105;  2.  Upham  v.  Clute,  105  Mich. 
Eeinhard  v.  Columbus,  49  Ohio  St.  350,  G3  N.  W.  317. 
257,  31  N.  E.  35;  Butler  v.  Foster,  3.  Lindley  v.  Simpson,  45  111. 
14  Ala.  323.                                                    App.  648. 

11.  Rock       Island       v.       Mercer  4.  Wilson  v.  Voss,  54  Mo.   App. 

County,  24  111.  35.  221;  Trudeau  v.  Poutre,  165  Mass. 

1.  Sturges  V.  Bank,  75  111.  595;        81,  42  N.  E.  508. 
Hughes  V.  Fisher,   10  Colo.  383,  15  5.  Wood    v.    Corcoran,     1    Allen 

P.  702;  Comstock  v.  Norton,  36  (Mass.),  405;  Furbish  v.  Goodnow, 
Mich.  277.  See,  also,  Gleason  v.  98  Mass.  296;  Eden  v.  Chaffee,  160 
Fitzgerald,  105  Mich.  516,  63  N.  W.  Mass.  225,  35  N.  E.  675;  Lord  v. 
512.  Davis,   3   Allen    (Mass.),   131. 

153 


§§  131,  132        FREEDOM  OF  CONTEACT.  Ch.  4 

ute,  and  the  assignee,  upon  the  collection  of  the  claim  bj  him, 
becomes  liable  to  such  third  person  in  the  amount  of  such  in- 
debtedness.^ And  so  the  statute  does  not  apply  where  the  de- 
fendant after  having  received  moneys  from  plaintiff's  debtor 
-with,  which  to  pay  the  debt,  retains  it.  Having  received  and 
retained  the  money  the  debt  becomes  his  own.^  If  the  receiver 
takes  the  property  for  such  purpose  and  promises  the  debtor  to 
pay  such  debt,  the  promise  need  not  be  in  writing.^  Thus, 
where  lumber  was  sold  to  A  on  the  credit  of  B,  and  A  pays  B 
therefor,  a  promise  by  B  to  the  vendor  to  pay  him  for  the  lum- 
ber will  be  in  the  nature  of  an  original  contract  to  pay  the  debt 
of  a  third  party,  founded  upon  a  sufficient  consideration,  and 
not  within  the  statute.^ 

The  property  must  be  placed  in  the  hands  of  a  third  party 
unconditionally,  and  the  third  party  must  take  it  for  that  pur- 
pose. If  the  third  party  has  the  option  to  pay  the  debt  out  of 
his  own  property,  and  not  out  of  the  debtor's,  then  the  promise 
to  pay  the  creditor  comes  within  the  statute  and  must  be  in 
vn'iting.^  So  where  the  assignee  arranges  to  pay  the  assignor's 
debt  after  he  has  reduced  or  converted  the  property  into  cash, 
a  verbal  promise  to  the  debtor's  creditor  before  such  conversion 
into  money,  to  pay  the  debt  is  void,  as  it  comes  within  the 
statute.® 

When  the  money  is  in  the  hands  of  the  promisor  no  written 
contract  is  required.  Thus,  where  a  party  agrees  to  pay  board 
for  workmen,  and  has  the  money  for  that  purpose,  an  oral  con- 
tract is  sufficient.^ 

§  132.  Contractor  abandoning  work  —  Agreement  with  his 
workmen  to  finish. —  It  is  held  that  where  a  contractor  aban- 

1.  Wills  V.  Bank,  23  Nev.  59,  42  4.  Watkins  v.  Sands,  4  111.  App. 
P.  490;   Watson  v.  Perrigo,  87  Me.       207. 

202,  32  A.  876;  Phelps  v.  Rowe,  75  5.  Ackley  v.  Parmenter,  98  N.  Y. 

Hun   (N.  Y.),  414,  27  N.  Y.  S.  89.       425,  50  Am.  Rep.  693;    Shaaber  v. 

2.  Hamill   v.   Hall,  4   Colo.  App.       Bushong,   105  Pa.  St.  514. 

290,  35  P.  927.  6.  Belknap   v.   Bender,   75   N.   Y. 

3.  Wait    V.    Wait,    28    Vt.    350;        446,  31  Am.  Rep.  476. 

Dock  V.  Boyd,  93  Pa.  St.  92.  7.  Chicago,  etc.,  Coal  Co.  v.  Lid- 

dell,  69  HI.  639. 

154 


Ch.  4 


STATUTE    OF    FRAUDS, 


132 


dons  his  work  in  erecting  a  building,  the  owner  may  be  held  on 
a  verbal  agreement  made  with  the  workmen  to  go  on  and  com- 
plete the  work/  But  other  cases  hold  that  such  contract  with 
the  workmen  is  within  the  statute  and,  therefore,  must  be  in 
writing.^  The  general  rule  is  this:  Where  the  leading  object 
of  the  undertaking  is  to  promote  some  objects  of  the  owner,  his 
promise  to  pay  is  not  within  the  statute,  although  its  effect  is  to 
release  or  suspend  the  debt  of  another.  Thus,  where  a  party 
had  employed  a  contractor  to  build  a  house,  who  fails  on  account 
of  financial  inability  to  pay  his  workmen  and  material  men, 
and  the  o'^\Tier  who  will  be  benefited  by  the  performance  of  the 
contract,  in  order  to  make  performance  possible,  promises  to 
pay  for  the  labor  and  materials,  if  the  laborers  and  material- 
men will  go  on;  such  a  promise  is  to  answer  for  the  debt  of  an- 
other, yet  it  is  not  a  contract  of  surety,  and  need  not  be  in 
writing.  Such  a  promise  is  original,  and  not  within  the  statute.^ 
Because  the  leading  object  is  to  promote  some  interest  of  his 
own,  and  so  the  promise  is  not  within  the  statute,  although  the 
effect  is  to  release  or  suspend  the  debt  of  another.*  The  dis- 
tinction is  between  a  promise,  the  object  of  which  is  to  promote 
the  interest  of  another,  and  one  in  which  the  object  is  to  promote 
the  interest  of  the  party  making  the  promise.  The  former  is 
within  the  statute ;  the  latter  is  not  affected  by  it.  But  where 
the  promisor  is  himself  to  receive  the  benefit  for  which  the 
promise  is  exchanged,  it  is  not  usually  material  whether  the 
original  debtor  remains  liable  or  not;^  this  is  the  general  rule, 
but  there  are  cases  which  hold  that  the  statute  applies  in  spite 


1.  Buchanan  v.  Moran,  62  Conn. 
83,  25  A.  396;  Crawford  v.  Edison, 
45  Ohio  St.  239,  13  N.  E.  80;  Yeo- 
mans  v.  Mueller,  33  Mo.  App.  343. 

2.  Farnham  v.  Davis,  79  Me. 
282,  9  A.  725;  Greene  v.  Latham, 
2  Colo.  App.  416,  31  P.  233. 

3.  Nelson  v.  Boynton,  3  Met. 
(Mass.)     396,    37    Am.    Dec.     148; 

Hall  V.  Alfred,   105  Ky.  664,  49  S. 
W.  444. 


4.  Clifford  v.  Luhring,  69  111. 
401;  Walker  v.  Hill,  110  Mass. 
249,  14  Am.  Rep.  598;  Merriman 
V.  McManus,  102  Pa.  St.  102;  Kel- 
ley  V.  Schupp,  60  Wis.  76,  18  N. 
725;  Crawford  v.  Edison,  45  Ohio 
St.  239,  13  N.  E.  80;  Emerson  v. 
Slater,  22  How.    (U.  S.)    43. 

5.  Calkins  v.  Chandler,  36  Mich. 
324;  Jefferson  v.  Slagle,  66  Pa.  St. 
202. 


-f    M  ••' 


§§  132,  133        FREEDOM  OF  CONTEACT.  Ch.  4 

of  the  benefit  obtained,  if  the  original  liability  is  allowed  to 
remain.® 


ARTICLE  VII. 
Ageeement  ISToT  TO  Be  Peefoemed  Within  a  Yeak. 

Section  133.  What  Contracts  are  Within  the  Statute. 

134.  Contracts  Not  Within  the  Statute. 

135.  One  Year  from  the  Making  Thereof. 

136.  Parol  Lease  of  Land  for  a  Year. 

137.  Part  Performance  Within  a  Year — Performance  on  One  Side. 

§  133.  What  contracts  are  within  the  statute. — The  English 
statute  of  frauds  provides  that  no  action  shall  be  brought  in 
any  agreement  that  is  not  to  be  performed  within  the  space  of 
one  year  from  the  making  thereof.-^  This  statute  includes  only 
such  contracts  as  either  by  their  express  terms,  or  by  a  fair  rea- 
sonable construction  of  all  their  provisions,  cannot  possibly, 
under  any  circumstances,  be  performed  within  a  year  from  the 
making  thereof.^  To  be  void  under  the  statute,  the  contract 
must  be  one  not  to  be  performed  within  one  year  from  the 
making  thereof.^ 

The  doctrine  established  by  the  adjudications  of  this  country, 
is  that,  in  order  to  bring  a  case  within  the  operation  of  the 
statute,  there  must  be  an  express  and  specific  stipulation  in  the 
contract  that  it  is  not  to  be  performed  within  the  year,  or  it 
must  appear  therefrom  that  it  was  not  the  intention  of  the 
parties  that  the  agreement  should  be  performed  within  that 
period,  that  is  there  must  be  a  negation  of  the  right  to  perform 
within  the  year.* 

6.  Morrissey  v.   Kinsey,   16   Neb.  Ivy.   184,  3   S.  W.   129;   Durham  v. 

17,    19   N.   454;    Sext  v.   Geise,   80  Hiatt,   127  Ind.  514,  26  N.  E.  401. 

Ga.  698,  6   S.  E.   174;    Wilhelm  v.  3.  Powder  River  Live  Stock  Co. 

Voss,    118    Mich.     106,    76    N.    W.  v.    Lamb,    38    Neb.    339,   56    N.    W. 

308.  1019. 

1.  29  Car.  II,  ch.  3,  sec.  4.  4.  Treat   v.    Hiles,   68   Wis.    344, 

2.  Kansas  City,  etc.,  R.  R.  Co.  32  N.  W.  517,  60  Am.  Rep.  858; 
V.  Conlee,  43  Neb.  121,  61  N.  W.  Baker  v.  Lauterbach,  68  Md.  64,  11 
111;    Bullock   V.    Turnpike   Co.,   85  A.   703;    Aiken  v.   Nogle,   47  Kans. 

156 


Ch,    4  STATUTE    OF    FRAUDS.  §    134 

§  134.  Contracts  not  within  the  statute. —  1.  The  first  class 
of  cases  not  within  the  statute  is  where  no  term  of  years  is  al- 
luded to,  but  the  time  of  performance  is  either  wholly  indefinite, 
or  depends  upon  some  future  contingency  or  event  which  may 
or  may  not  happen  within  a  year.  Although  such  event  does 
not  occur  until  a  year,  the  promise  is  clearly  not  within  the 
statute.  Thus  to  marry  in  or  within  three  years,^  or  within  four 
years  f  or  to  do  something  on  the  marriage  or  death  of  a  person 
without  further  specifications  of  time  ;^  or  upon  the  happening 
of  any  other  event  which  may  happen  at  any  time.^ 

It  is  well  settled  that  an  oral  agreement,  which  according  to 
the  express  understanding  or  contemplation  of  the  parties  may 
or  may  not  be  performed  within  a  year,  is  not  within  the  statute.^ 
Thus,  the  agreement  to  support  a  child  until  a  certain  age  at 
which  the  child  will  arrive  after  several  years,  is  not  within  the 
statute,' because  it  depends  upon  a  contingency  of  the  child's  life, 
and  if  the  child  should  die  within  one  year,  the  contract  would 
be  fully  performed.^ 

2.  The  same  general  principles  apply  to  promises  to  continue 

96,   27    P.   825;    Durham   v.   Hiatt,  404;   Cole  v.  Singerly,  60  Md.  348; 

127  Ind.  514,  Kent  v.  Kent,  62  N.  Clark  v.  Pendleton,  20  Conn.  495; 

Y.   560,   20  Am.  Rep.   502;    Barton  Thomas  v.  Armstrong,  86  Va.  323, 

V.   Gray,   57   Mich.   622,   24  N.   W.  10   S.   E.   6;    McConahey  v.  Griflfy, 

638;   Horner  v.  Frazier,  65  Md.  1;  82  Iowa,  564,  48  IS.  W.  983. 

Smalley  v.  Greene,  52  Iowa,  241,  3  5.  Doyle  v.  Dixon,  97  Mass.  208, 

N.  78,  35  Am.  Rep.  267   and  note;  93  Am.  Dec.  80  and  note;   Bartlett 

Powder    River    Live    Stock    Co.    v.  v.   Mystic   River    Corp.,    151    Mass. 

Lamb,  38  Neb.  339,  56  N.  W.  1019;  433,  24  N.  E.  780;  Faine  v.  Turner, 

Worley  v.    Sipe,    111    Ind.    238,    12  96  Ky.  634,  29   S.  W.  628;    Sweet 

N.  E.  385;  Raynor  v.  Drew,  72  Cal.  v.  Lumber  Co.,  56  Ark.  629,  20  S. 

307,  18  P.  82;  Meflin  v.  Milton,  69  W.   514;    Jones  v.   Pouch,  41   Ohio 

Ala.    354;     Sarles    v.     Sharlow,    5  St.  146. 

Dak.   100,  37  N.  W.  748;   Gonzoles  6.  Peter      v.      Westborough,      19 

v.  Chartier,  63  Tex.  36;   Farwell  v.  Pick.     (Mass.)     211;    McClellan    v. 

Tilson,    76    Me.    228;    Blair    To^vn  Sanford,    26    Wis.    595;    Curtis    v. 

Lat.  Co.  V.  Walker,  39  Iowa,  411.  Sage,  35  111.  22;  Berry  v.  Doremus, 

1.  Paris  V.   Strong,  51   Ind.   341.  30  N.  J.  L.  403;   Haugh  v.  Blythe, 

2.  Lawrence  v.  Cook,  56  Me.  187,  20  Ind.  24;    Smalley  v.  Greene,  52 
96  Am.  Dec.  443.  Iowa,   241,   3   N.   78,   35   Am.   Rep. 

3.  Kent  v.   Kent,  65   N.   Y.   560.  267  and  note;  Blanding  v.  Sargent, 

4.  McPherson  v.   Cox,   96   U.    S.  33  N.  H.  239,  66  Am.  Dec.  720. 

157 


§    134  FllEEDOM    OF    CONTRACT.  Ch.    4: 

to  pay  or  to  do  something  until  some  future  event  or  contin- 
gency, either  distinctly  expressed  or  necessarily  implied,  shall 
occur.^  Thus,  the  promise  to  support  a  child  so  long  as  the 
party  thinks  proper  f  to  employ  a  person  so  long  as  he  may  be 
disabled  by  an  injury;^  a  contract  by  an  actress  to  aid  in  per- 
forming a  play  so  long  as  it  continues  a  success;'"  to  pay  a 
party  a  certain  amount  so  long  as  he  shall  maintain  and  educate 
children  properly. ^^  So  contracts  that  may  be  terminated  at 
any  time  on  notice,  and  contracts  to  perform  acts  so  long  as  the 
other  party  may  need  such  work.^^ 

3.  The  same  doctrine  applies  when  a  party  contracts  not  to 
do  something,  as  never  to  carry  on  some  particular  business; 
because  it  is  a  personal  engagement  and  stipulates  nothing  be- 
yond the  promisor's  life,  and  imposes  no  duties  upon  his  legal 
representatives.  The  fact  of  abstaining  from  the  business  of 
the  promisor  until  his  death  would  be  a  full  performance  of  the 
contract,  and  that  event  might  occur  within  a  year.^^ 

4.  Another  class  of  cases  are  those  in  which  the  contract  pro- 
vides a  certain  number  of  years  as  the  extreme  limit  of  its 
continuance,  and  also  expressly  contains  an  alternative,  or  con- 
tingency on  which  it  may  sooner  terminate.  If  this  contingency 
may  happen  within  a  year  the  contract  is  not  within  the  stat- 
Tite.^^ 

5.  Another  class  of  cases  not  within  the  statute  are  contracts 

7.  Dant  v.  Head,  90  Ky.  255,  13  9  Ex.  1,  309.  See,  also,  Arkansas, 
S.  W.  1073,  29  Am.  St.  Rep.  369;  etc.,  R.  R.  Co.  v.  Whitby,  54  Ark. 
Heath  v.  Heath,  31  Wis.  223;  Mc-  199,  15  S.  W.  465,  11  L.  R.  A.  621 
Gregor  v.  McGregor,  L.  R.  21  Q.  B.  and  note. 

424.  12.  Blake     v.     Voight,     134     N. 

8.  Souch  V.  Strawbridge,  2  C.  B.  Y.  69,  31  N.  E.  256,  30  Am.  St. 
808.  Rep.  622;   Walker  v.  Railroad  Co., 

9.  East  Tennessee,  etc.,  R.  R.  Co.  26  S.  Car.  80,  1  S.  E.  366. 

V.  Staub,  7  Lea    (Tenn.),  397.    See,  13.  Foster    v.     McO'Blennis,    18 

also,  Hutchinson  v.  Hutchinson,  46  Mo.    88;    Lyon    v.    King,    11    Met. 

Me.  154;  Stowers  v.  Hollis,  83  Ky.  (Mass.)     411,    45    Am.    Dec.    219; 

544;    Atchison,    etc.,    R.    R.    Co.    v.  Doyle    v.    Dixon,    97    Mass.     208; 

English,  38  Kan.  110,  17  P.  811.  Richardson  v.   Pierce,   7   R.   I.   330. 

10.  Haines  v.  Thompson,  19  N.  See,  also,  Jordan  v.  Miller,  75  Va. 
Y.  Supp.   184.  442. 

11.  Knowlman   v.    Bluett,  L.   R.  14.  Seddon     v.     Rosenbaum,     85 

158 


C'h,  4  STATUTE  OF  FRAUDS.  §§  134,  135 

for  personal  service.  Thus,  a  contract  for  a  reasonable  time  or 
from  month  to  month  comes  within  this  class  though  the  service 
extends  through  several  years  before  settlements^  But  a  con- 
tract for  a  year's  service  to  begin  on  some  future  day  beyond  the 
next  is  within  the  statute  ;^^  and  this  is  so  provided  the  interven- 
ing day  is  Sunday.^"  If  the  service  is  entered  into  on  the  day 
of  the  contract  it  is  valid.^^  A  contract  of  service  which  may  be 
completed  within  a  year  is  not  within  the  statute. ^^ 

§  135.  One  year  from  the  making  thereof. —  It  appears  that 
the  phrase  "  from  the  making  thereof  "  is  omitted  in  some  of 
the  statutes  of  frauds.  In  such  case,  a  lease  for  a  term  not  longer 
than  one  year  may  be  made  to  begin  in  tlje  future  by  verbal 
contract,  and  will  be  held  to  be  binding  under  the  statute.^  And 
other  courts  arrive  at  the  same  conclusion  by  construction  of 
the  statute.     Thus,  in  Texas,  clause  4  of  the  statute  reads: 

"  Upon  any  contract  for  the  sale  of  real  estate,  or  the  lease 
thereof  for  a  longer  term  than  one  year."  Clause  5  reads: 
"  Upon  any  agreement  which  is  not  to  be  performed  within  the 

Va.  928,  9  S.  E.  326,  3  L.  R.  A.  337  18.  Cox  v.  Brewing  Co.,  53  Hun 

and  note;  Hodges  v.  Manuf.  Co.,  9  (N.  Y.),  634,  6  N.  Y.  S.  84;  Aiken 

K.  I.  482;  Roberts  v.  Rock  Bottom  v.  Nogle,  47  Kans.  96. 

Co.,  7  Met.   (Mass.)   46.  19.  Vocke  v.  Peters,  58  HI.  App. 

15.  Kiene  v.  Snaeffing,  33  Neb.  338;  Louisville,  etc.,  R.  R.  Co.  v. 
22,  49  N.  W.  773;  Niagara  Fire  Offutt  (Ky.),  36  S.  W.  181,  18  Ky. 
Ins.  Co.  V.  Greene,  77  Ind.  590;  L.  R.  303;  Baltimore  Breweries  Co. 
Cole  V.  gingerly,  60  Md.  348;  Aiken  v.  Callahan,  82  Md.  106,  33  A.  460; 
V.  Nogle,  47  Kan.  96,  27  P.  825;  Carter  White  Lead  Co.  v.  Kivlin, 
Dickson  v.  Frisbee,  52  Ala.  165,  23  47  Neb.  409,  66  N.  W.  536;  Har- 
Am.  Rep.  565;  Brittain  v.  Rossiter,  rington  v.  Railroad  Co.,  60  Mo. 
11  Q.  B.  Div.  123.  App.  223.     See,  also,  Butler  v.  She- 

16.  Bracegirdle  v.  Heald,  1  han,  61  111.  App.  561;  Hughes  v. 
Barn.  &  Aid.  727;  McElroy  v.  Liid-  Frum,  41  W.  Va.  445,  23  S.  E. 
lum,  32  N.  J.  Eq.  828';  Shumate  604;  Frain  v.  Turner,  96  Ky.  634, 
V.  Farlow,  125  Ind.  359,  25  N.  E.  29  S.  W.  628 ;  Weatherford,  etc.,  R. 
432;  Lee  v.  Hill,  87  Va.  497,  12  S.  R.  Co.  v.  Wood,  88  Tex.  191,  32  S. 
E.  1052,  26  Am.  St.  Rep.  666.  W.  878,  28  L.  R.  A.  526. 

17.  Brittain  v.  Rossiter,  11  Q.  1.  Becar  v.  Flues,  64  N.  Y.  518; 
B.  Div.  123.  See,  also,  Billington  Young  v.  Dake,  5  N.  Y.  468;  Sears 
V.  Cahill,  51   Hun    (N.  Y.),   132,  4  v.  Smith,  3  Colo.  287. 

A.   Y.   S.   660. 

159 


§    135  FREEDOM    OF    CONTRACT.  Ch,    4: 

space  of  one  year  from  tlie  making  thereof."  The  court  says 
in  construing  these  clauses  that  clause  5  would  prohibit  a  verbal 
agreement  for  the  lease  of  real  estate  for  one  year,  to  begin  in 
future,  if  it  were  not  that  clause  4  provides  specially  a  rule  to 
govern  such  leases.  The  rule  of  construction  is,  that  a  special 
provision  in  a  statute  will  control  a  general  provision  which 
would  otherwise  include  that  mentioned  in  the  particular  pro- 
vision. Hence,  a  lease  for  a  term  not  longer  than  one  year  may 
be  made  to  commence  in  the  future  by  verbal  contract,  and  is 
valid  under  the  statute.^ 

The  Texas  court  says  that  there  is  a  marked  difference  in  the 
language  of  clauses  4  and  5  of  the  article.  The  fifth  prohibits 
the  enforcements  of  contracts  which  are  not  to  be  performed 
"  within  one  year  from  the  making  thereof,"  limiting  both  the 
time  of  commencement  and  continuance ;  while  the  fourth  clause 
prohibits  the  enforcement  of  leases  of  real  estate  "  for  a  longer 
term  than  one  year,"  limiting  and  fixing  only  the  time  of  dura- 
tion. "  If  the  legislature  had  intended  that  leases  should  be 
limited  to  one  year  from  the  time  of  making,  then  it  was  use- 
less to  mention  them  in  clause  4,  for  they  would  have  been  em- 
braced in  clause  5."  ^ 

But  this  interpretation  is  not  accepted  by  all  the  courts,  and 
it  is  held  that  a  parol  lease  for  a  year,  to  commence  at  a  future 
day,  is  within  the  clause  of  the  statute  and  must  be  in  writing 
to  be  valid;*  but  a  part  performance  may  take  it  out  of  the 
statute.^ 

2.  Bateman  v.  Maddox,  86  Tex.  484,  9  So.  164;  Cook  v.  Redman, 
546,  26  S.  W.  51.  See,  also,  Sobey  45  Mo.  App.  397;  White  v.  Hol- 
V.  Brisbee,  20  Iowa,  105;  Anderson       land,   17   Oreg.  3,  3  P.  5/3;   Jellett 


V.  May,  10  Heisk.  (Tenn.)  90 
Eaton  V.  Whitaker,  18  Conn.  230 
Huffman    v.    Starks,    31    Ind.    474 


V.  Rhode,  43  Minn.  166,  45  N.  W. 
13;  Greenwood  v.  Strather,  91  Ky. 
482,  16  S.  W.   138;   Alt  v.  Lohnas, 


Whiting  V.    Ohlert,    52    Mich.   462,  19  111.  576;  Wolf  v.  Dozer,  22  Kan. 

18   N.   219,  50  Am.  Rep.  205;    Mc-  436;     Atwood    v.    Norton,    31    Ga. 

Croy  V.  Toney,  66  Miss.  233,  5  So.  507. 

392,  2  L.  R.  A.  847.  5.  People's      Pure      Ice      Co.      v. 

3.  Bateman  v.  Maddox,  86  Tex.  Trumbull,      70      Fed.      Rep.      166; 
646,  554,  26  S.  W.  51.  Rhodes    Furniture    Co.    v.    Weedon, 

4.  Wheeier    v.    Frankenthal,    78  108  Ala.  252,  19  So.  318. 
111.    124;    White   v.   Levy,    93   Ala. 

160 


Ch.  i  STATUTE  OF  FRAUDS.  §§  13G,  137 

§  136.  Parol  lease  of  land  for  a  year. —  A  tenant  by  parol  for 
a  single  year,  has  not,  at  common  law,  nor  save  by  express  valid 
stipulation,  or  custom  of  the  country,  or  estoppel  in  pais  a 
right  to  an  outgoing  crop.^  But  this  is  otherwise  in  Pennsyl- 
vania, New  Jersey,  and  Delaware.''  The  fact  that  the  usual 
crop  of  the  country  cannot  come  to  maturity  in  a  year,  does  not 
raise  by  implication  a  right  to  hold  over.^  And  the  right  to 
enter  and  reap  a  crop  of  wheat  after  the  expiration  of  a  parol 
lease  of  land  is  an  interest  in  land.^  Hence,  a  parol  lease  of 
land  for  one  year,  coupled  with  a  verbal  agreement  that  the 
tenant  may  sow  the  land  to  wheat,  will  not  give  him  the  right  to 
enter  after  the  expiration  of  the  year,  and  harvest  the  wheat.^° 

§  137.  Part  performance  within  a  year  —  Performance  on 
one  side. —  The  general  rule  in  England  and  in  many  of  the 
United  States  is  that  an  agreement  does  not  fall  within  the 
statute,  provided  one  party  can,  according  to  the  contract,  per- 
form and  does  perform  within  a  year.^  But  other  courts  hold 
that  the  contract  is  still  within  the  statute  whenever  the  other 
party's  promise  is  not  to  be  performed  within  the  year.^     And 

6.  Wigglesworth  v.  Dallison,  1  1.  Bracegiidle  v.  Heald,  1  Barn. 
Doug.  201;  Caldecatt  v.  Suiythies,  &  Aid.  722;  Donellan  v.  Read,  3 
7  Car.  &  P.  808;  Bain  v.  Clark,  10  Barn.  &  Ad.  899;  Worden  v.  Sharp, 
Johns.  (N.  Y.)  424;  Beeder  v.  50  111.  104;  Halbrook  v.  Armstrong, 
Sayre,  70  N.  Y.  180,  26  Am.  Rep.  10  Me.  31;  Horner  v.  Frazier,  05 
507.  Md.     1;     Washburn    v.    Dasch,    68 

7.  Gordon  v.  Little,  8  Serg.  &  Wis.  436,  32  N.  W.  551,  00  Am. 
R.  (Pa.)  533,  11  Am.  Dec.  032;  Rep.  873;  Smock  v.  Smock,  37  Mo. 
Stutz  V.  Dickey,  5  Binn.  (Pa.)  285,  App.  56;  Winters  v.  Cherry,  78  Mo. 
6  Am.  Dec.  411;  Demi  v.  Bossier,  1  344;  Kendall  v.  Gaxnead,  55  Neb. 
Pa.  224;  Van  Doren  v.  Everett,  2  403,  75  N.  W.  852;  Blanding  v. 
South.  (N.  J.)  460,  8  Am.  Dec.  615;  Sargent  33  N.  H.  239,  66  Am.  Dec. 
Templeman  v.  Biddle,  1  Harr.  720;  Beny  v.  Doremus,  30  N.  J. 
(Del.)    522.  L.   399;    Piper  v.   Foster,    121   Ind. 

8.  Reeder  v.  Sayre,  70  N.  Y.  407,  23  X.  E.  269;  Smalley  v. 
180,  26  Am.  Rep.  5()7.  Greene,  52   Iowa,  241,   3  N.  78,  35 

9.  Carney  v.  Mosher,  97  Mich.  Am.  Rep.  267  and  note;  Durfee  v. 
554.  56  N.  W.  935.  O'Brien,  16  R.  I.  213,  14  A.  857. 

10.  Carney  v.  Mosher,  97  Mich.  2.  Pierce  v.  Paine,  28  Vt.  34; 
554,  56  N.  W.  935.                                      Marcy  v.  Marcy,  9  Allen    (Mass.), 

161 


137 


FREEDOM    OF    CONTRACT. 


Ch.     4: 


SO  a  part  performance  by  one  of  the  parties  will  not  take  the 
agreement  ont  of  the  statute.^ 

In  Boydell  v.  Drummond,*  it  was  held  that  an  agreement  is 
within  the  statute,  if  its  performance  is  to  be  commenced  on 
both  sides  within  a  year.  In  1832,  in  Donellan  v.  Eead,^  it  was 
decided  that  the  statute  refers  only  to  agreements  to  be  per- 
formed on  either  side  within  a  year.  But  this  decision  was 
doubted  in  another  case,^  but  followed  in  Cherry  v.  Heming.^ 
In  1886  the  doctrine  of  Donellan  v.  Read  was  disapproved,  but 
was  considered  to  be  too  finely  established  to  be  overruled.^ 


8;  Lane  v.  Shackford,  5  N.  H.  130; 
Bioadwell  v.  Getman,  2  Denio  (N. 
Y.),  87;  Whipple  v.  Parker,  29 
Mich.  369;  Montague  v.  Garnett, 
3  Bush  (Ky.)  297;  Wilson  v.  Ray, 
13  Ind.  1. 

3.  Shumate  v.  Far  low,  125  Ind. 
359,  25  N.  E.  432;  Osborne  v.  Kim- 
ball, 41  Kan.  187,  21  P.  163;  Com- 
pare Washburn  v.  Dasch,  68  Wis. 
436,  32  N.  W.  551,  60  Am.  Rep. 
873. 

4.  11  East,  142. 

5.  3  Barn.  &  Adol.  899. 

6.  Souch  V.  Strawbridge,  2  Man. 
G.  &  S.  808. 

7.  4  Exch.  631. 


8.  Miles  V.  Estate  Co.,  32  Ch. 
D.  266.  See,  also.  Rake  v.  Pope,  7 
Ala.  161;  Johnson  v.  Watson,  1 
Kelly  (Ga.)  348;  Bates  v.  Moore, 
2  Bailey  (S.  Car.),  614;  Perkins 
V.  Clay,  54  N.  H.  518;  Curtis  v. 
Sage,  35  111.  22;  Grace  v.  Lynch, 
80  Wis.  166,  49  N.  W.  751;  Dant 
V.  Head,  90  Ky.  255,  13  S.  W. 
1073,  29  Am.  St.  Rep.  369;  Sed- 
don  V.  Rosenbaum,  85  Va.  928,  9 
S.  E.  326,  3  L,  R.  A.  337  and  note; 
Atchison,  etc..  Railroad  Co.  v.  Eng- 
lish, 38  Kan.  110,  16  P.  82;  Com- 
pare Warner  v.  Railway  Co.,  54 
Fed.  Rep.  922,  4  C.  C.  A.  673. 


162 


Ch.    4  STATUTE    OF    FRAUDS.  §    138 

ARTICLE  VIII. 

Agreements  Within  Section  Seventeen. 

Section  138.  Application  of  Statute. 

139.  Executed  and  Executory  Contracts. 

140.  Taking  Back  Chattels  After  Sale. 

141.  Price. 

142.  Amount  of  Sale. 

143.  Sale  of  Several  Articles. 

144.  Goods,  Wares,  and  Merchandise. 

145.  Delivery  and  Acceptance. 

146.  Contracts  for  Work  and  Labor. 

147.  What  is  an  Acceptance — When  Question  for  Jury. 

148.  Goods   Delivered  Subject  to  Examination — Acceptance. 

149.  Intention. 

150.  Property  in  Possession  of  Third  Person. 

151.  Acts  which  Amount  to  an  Acceptance. 

152.  Designation  of  Carrier  by  Vendee — Delivery  of  Goods. 

153.  Earnest  and  Part  Paj'ment. 

154.  When  Part  Payment  Must  be  Made. 

155.  What  Constitutes  Part  Payment. 

156.  In  What  Property  Part  Payment  may  be  Made. 

§  138.  Application  of  statute. —  The  seventeenth  section  of 
the  statute  of  frauds/  declares  all  contracts  for  the  sale  of 
goods,  wares,  and  merchandise  for  the  price  of  ten  pounds  and 
upwards  to  be  invalid  unless  part  of  the  goods  be  accepted,  or 
part  of  the  price  be  paid,  or  something  be  given  in  earnest  to 
bind  the  bargain,  or  some  note  or  memorandum  in  writing  be 
signed  bj  the  party  to  be  charged.  This  section  governs  all 
sales  of  goods,  as  at  auction  or  at  private  sale.^ 

In  Illinois  this  section  has  never  been  enacted,  and  hence 
no  cases  from  this  State  can  be  cited  as  to  its  application  and 
interpretation. 

It  is  generally  held  in  England^  and  the  United  States  that 

1.  29  Car.  II,  ch.  3.  ing,  4  Har.  &  J.   (Md.)    186,  7  Am. 

2.  Kenworthy     v.      Schofield,     2       Dec.  669. 

Barn.  &  Cr.  945;   Davis  v.  Howell,  3.  Pollock   on   Cont.   605;   Anson 

2    Pick.    (Mass.)    64,    13   Am.   Dec.        on  Cont.  67. 
398   and  note;    Singstaek   v.   Hard- 

163 


§§  138,  139       FREEDOM  or  CONTRACT.  Ch.  4: 

the  contracts  not  in  accord  with  the  provisions  are  not  void  but 
only  not  enforceable  by  suit,  as  in  case  of  verbal  contracts  v^ith- 
in  section  fourth.*  The  later  enunciations  of  the  English  and 
American  courts  hold  that  upon  principle  contracts  not  made 
in  compliance  with  this  section  are  not  void  but  voidable.^  For 
any  case  to  be  within  this  section  the  contract  must  be  for  the 
sale  of  goods,  wares,  and  merchandise,  of  a  price  or  value  in 
the  statute  specified. 

§  139.  Executed  and  executory  contracts. —  The  seven- 
teenth section  extends  to  executed  as  well  as  to  executory  con- 
tracts,'' and  no  sale  is  valid  except  when  the  statute  has  been 
complied  with.^  At  an  early  time  in  England,  it  was  held  that 
this  section  did  not  include  executory  contracts  f  so  it  was  en- 
acted^ that  it  should  apply  "notwithstanding  the  goods  may  be 
intended  to  be  delivered  at  some  future  time,  or  may  not  at  the 
time  of  such  contract  be  actually  made,  procured,  or  provided, 
or  fit  or  ready  for  delivery,  or  some  act  may  be  requisite  for  the 
making  or  completing  thereof,  or  rendering  the  same  fit  for 
delivery." 

However,  before  this  statute  was  passed  the  doctrine  had  been 
changed  and  executed  and  executory  contracts  were  held  to  be 
within  the  statute.^"    This  is  the  American  doctrine.^^    Hence  a 

4.  Townsend  v.  Hargraves,  118  7.  Buxton  V.  Bedell,  3  East, 
Mass.  325;  Compare  Houghtaling  303;  Marsh  v.  Hyde,  3  Gray 
V.  Ball,  20  Mo.  503;  Alderton  v.  (Mass.),  331;  Alexander  v.  Com- 
Bucboz,    3    Mich.    322;     Daniel    v.  ber,  1  H.  Bl.  20. 

Fiazer,    40    Miss.     507;     Head    v.  8.  Clayton  v.  Andrews,  4  Burr. 

Goodwin,  37  Me.   181.  2101;       Towers      v.       Osborne,       1 

5.  Maddison  v.  Alderson,  8  App.        Strange,  506. 

Cas.  407,  488;   Bira  v.  Munroe,  66  9.  9  Geo.  IV,  c.  14,  sec.  7. 

Me.  337,  22  Am.  Rep.  571;  Harman  10.  Corbett  v.   Watson,   5   Barn. 

V.   Reeve,   18   C.   B.   587;    Townsend  &   Aid.    613;    Cooper    v.    Elston,    7 

V.   Hargraves,    118   Mass.   325,   334.  Term  R.   14;   Rondeau  v.  Wyatt,  2 

6.  Bennett    v.    Hull,     10  Johns.  H.  Bl.  63. 

(N.  Y.)    364;  Rondeau  v.  Wyatt,  2  11.  Crookshank    v.    Burrell,     18 

H.    Bl.    63;     Cooper    v.    Elston,    7  Johns.    (N.  Y.)   58,  9  Am.  Dec.  187 

Term  R.    14;    Edwards  v.   Railroad  and   note;    Cason  v.   Cheely,   6   Ga. 

Co.,  48  Me.  370;  Hight  v.  Ripley,  554;  Bennett  v.  Hall,  10  Johns. 
19  Me.  137. 

1G4 


Ch.    4  STATUTE    OF    FRAUDS.  §§    139-141 

contract  by  a  railroad  company  to  take  all  the  wood  that  a  per- 
son would  put  on  its  line  of  its  road  during  the  season  at  the 
price  it  had  paid  him  before  for  wood,  or  more  if  the  wood  was 
better,  is  within  the  statute.^'  And  an  executory  contract  for  the 
sale  of  chattels  is  within  the  statute,  although  it  also  embraces 
some  other  agreement  to  which  the  statute  is  not  applicable.^^ 

§  140,  Taking  back  chattels  after  sale. —  Executed  contracts 
of  sale,  with  a  promise  by  the  vendor  of  chattels,  that  in  case 
they  do  not  suit  the  vendee  or  do  not  possess  certain  specified 
qualities  the  vendor  will  repay  to  the  vendee  the  purchase-price 
upon  their  return,  do  not  make  such  promise  an  independent 
contract;^  it  is  an  entire  contract,  and  the  promise  to  take  back 
the  property  and  repay  the  purchase-price  is  not  void  under  the 
statute.^ 

And  when  an  agent,  by  an  oral  contract,  sells  and  delivers 
the  goods  of  a  disclosed  principal,  his  personal  oral  warranty  of 
quality  is  not  a  contract,  independent  of  the  contract  of  sale, 
but  is  a  part  of  it,  and  one  consideration  is  sufficient  to  sup-, 
port  the  sale  and  warranty.^ 

§  141.  Price. —  The  price  is  an  essential  element  in  a  con- 
tract of  sale,  and  a  memorandum  which  does  not  state  the  price 

(N.  Y.)    364;  Edwards  v.  Kailioad  1.  Thornton  v.  Wynn,  12  Wheat. 

Co.,     48     Me.     379;     Waterman    v.  ( U.  S.)    183;   Towers  v.  Barnett,   1 

Meigs,  4  Cush.    (Mass.)   497;  Jack-  Term  R.  133. 

son    V.    Covert,    5    Wend.     (N.    Y.)  2.  Wooster  v.  Sage,  67  N.  Y.  67; 

139;     Lamb     v.     Crafts,     12     Met.  Williams  v.   Burgess,   10  Ad.  &  E. 

(Mass.)    353;    Sawyer  v.   Ware,   36  499;    Fitzpatrick    v.    Woodruff,    96 

Ala.  676;   Franklin  v.  Long,  7  Gill  N.  Y.  561;   Johnston  v.  Trask,   116 

&  J.    (Md.)    407;   Newman  v.  Mor-  N.  Y.  136,  22  N.  E.  377,  5  L.  R.  A. 

ris,  4  Harr.  &  Mc.    (Md.)   421.  630,    15   Am.   St.   Rep.   394;    White 

12.  Edwards  v.  Railroad  Co.,  48  v.  Knapp,  47  Barb.  (N.  Y.)  549; 
Me.  379.  See,  also.  Waterman  v.  Fay  v.  Wheeler,  44  Vt.  292;  Diek- 
Meigs,  4  Cush.    (Mass.)   499.  inson  v.  Dickinson,  29  Conn.  600. 

13.  Hanson  v.  Marsh,  40  Minn.  3.  Johnston  v.  Trask,  116  N.  Y. 
1,  40  N.  W.  841;  Harman  v.  Reeve,  136,  22  X.  E.  377,  5  L.  R.  A.  630, 
18    C.    B.    587;    Irvine   v.    Stone,   6  15  Am.  St.  Rep.  394. 

Cush.   (Mass.)   508. 

165 


§§  141-143        FKEEDOM  OF  CONTRACT.  Ch.  4 

—  except  in  cases  where  no  price  being  stipulated,  it  is  left 
to  be  measured  bj  the  rule  of  reasonable  or  market  value  —  is 
insufficient  to  satisfy  the  statute,  and  the  contract  is  bj  the  terms 
of  the  statute  void.* 

Where  the  parties  fix  no  price,  the  case  is  within  or  without 
the  statute  according  to  the  finding  of  the  jury.^  It  will  be  pre- 
sumed in  the  absence  of  a  specified  consideration  for  the  sale, 
that  there  was  a  promise  to  pay  a  reasonable  price,  provided 
there  be  no  verbal  agreement  as  to  the  price. 

§  142.  Amount  of  sale.  —  Most  of  the  statutes  fix  the 
amount  of  sale  which  brings  it  within  the  statute ;  if  not  within 
the  statute  it  is  governed  by  the  common  law.  In  England  the 
amount  of  sale  is  ten  pounds.  In  Massachusetts,  Oregon,  In- 
diana, Wisconsin,  and  'New  York,  it  is  fifty  dollars.  In  Ar- 
kansas, Maine,  Missouri,  and  l^ew  Jersey  it  is  thirty  dollars. 
In  New  Hampshire  it  is  thirty-three  dollars.  In  Vermont, 
forty  dollars.  In  California  and  Idaho,  two  hundred  dollars. 
In  Florida  and  Iowa  no  amount  is  fixed.® 

§  143.  Sale  of  several  articles. —  When  several  articles  are 
sole  separately  and  independently,  one  of  which  reaches  the 
amount  fixed  by  statute,  the  statute  does  not  apply ;  but  if  they 
are  all  included  in  the  same  transaction  and  the  price  is  equal 
to  or  exceeds  the  amount  of  the  statute,  then  it  applies,'^  and  the 
combined  price  of  all  the  articles  transferred  in  the  one  trans- 
action, is  compared  with  the  amount  in  the  statute.^ 

4.  Elmore  v.  Kingscott,  5  Barn.  6.  See  Mass.  Gen.  Stat.  c.  105, 
&  Cr.  583 ;  Acebal  v.  Levy,  10  Bing.  sec.  5 ;  Smith  v.  Smith,  8  Blackf. 
376;  Goodman  v.  Griffiths,  1  Hurl.  (Ind.)  208;  Dykers  v.  Townsend, 
&  N.  574;  Ide  v.  Stanton,  15  Vt.  24  N.  Y.  57;  Buckman  v.  Nash,  12 
685,  40  Am.  Dec.  698 ;  Waterman  V.  Me.  474;  Carman  v.  Smick,  3 
Meigs,   4   Gush.    (Mass.)    497;    As-  Green   (N.  J.),  252. 

croft    V.    Butterworth,     136    Mass.  1.  Baldey  v.   Parker,   2   Barn.   & 

511;    Stone  v.   Browning,  68   N.  Y.  Cr.  37. 

698,  604;   James  v.  Muir,  33  Mich.  2.  Gilman  v.  Hill,  36  N.  H.  311  j 

223.  Jenness  v.  Wendell,  51  N.  H.   63  j 

5.  Harmon   v.    Reeve,    18    C.    B.  12  Am.  Hep.  48. 
587. 

166 


Ch.  4  STATUTE  OF  FRAUDS.  §§  144,  145 

§  144.  Goods,  wares  and  merchandise. —  What  are  goods, 
wares,  and  merchandise,  is  a  question  not  easily  an- 
swered. In  fact  the  courts  are  in  conflict  as  to  this 
subject,  and  cannot  be  reconciled.  Thus,  it  is  said  that 
shares  of  stock  are  but  choses  in  action,  and  not 
within  the  statute.  This  is  the  English  holding  at  the  present 
time.^  And  this  is  the  decision  of  many  of  the  American  courts.^ 
Some  of  the  courts  of  this  country  have  taken  a  different  view 
of  the  question,  and  hold  choses  in  action  to  be  included  within 
the  meaning  of  the  statute;^  so  is  a  sale  of  book  accounts,*  of 
land  scrip.^ 

In  California,  Minnesota,  Montana,  ISTebraska,  ISTevada,  Xew 
York,  jSTorth  Dakota,  South  Dakota,  Utah,  Wisconsin,  and 
Wyoming,  the  words  "  things  in  action  "  have  been  substituted 
in  the  statute;  and  in  Connecticut,  Florida,  Mississippi,  and 
Oregon  the  words  "  personal  property  "  have  been  added  to  the 
statute.  These  additions  must  be  taken  into  consideration  in 
reading  decisions  of  these  States. 

§  145.  Delivery  and  acceptance. —  There  must  be  both  a  de- 
livery and  an  acceptance ;  and  both  of  the  parties  must  partake 
in  the  same  act.  A  delivery  alone  by  the  vendor  is  not  suffi- 
cient to  take  the  contract  out  of  the  statute ;  there  must  also  be  a 
receipt  and  acceptance  of  the  thing  sold  by  the  vendee,  to  have 
that  effect.^    And  a  vendor  cannot  sell  that  which  does  not  be- 

1.  Benjamin  on  Sales,  90,  91  j  (Mass.)  9;  Boardman  v.  Cutter, 
Humble  v.  Mitchell,  11  Adol.  &  El.  128  Mass.  388;  Hinchman  v.  Lin- 
205.  coin,   124   U.   S.   38,   8   S.   Ct.   369; 

2.  Webb  V.  Railroad  Co.,  77  Bernhardt  v.  Walls,  29  Mo.  App. 
Md.  92,  39  Am.  St.  Rep.  396;  Clark  206. 

V.    Burnham,    2    Story,    C.    C.    15;  4.  Smith  v.   Bouck,  33  Wis.   19; 

Whittemore  v.  Gibbs,  24  N.  H.  484;  Walker  v.  Supple,  54  Ga.   178. 

\awter  v.  Griffin,  40  Ind.  593.  5.  Somerby  v.  Buntin,  118  Mass. 

3.  Greenwood  v.  Law,  55  N.  J.  279;  Blakeney  v.  Goode,  30  Ohio 
L.  168,  26  A.  134,  19  L.  R.  A.  688;  St.  350;  Compare  Jones  v.  Rey- 
Baldwin      v.      Williams,      3      Met.  nolds,  120  N.  Y.  213,  24  N.  E.  379. 

(Mass.)    365;   North  v.  Forest,  15  6.  Powder  River  Live  Stock  Co. 

Conn.    400;    Pray    v.    Mitchell,    60       v.   Lamb,   38   Neb.   339,   56   N.   W. 
Me.  430;  Tisdale  V.  Harris,  20  Pick.       1019;     Simmons    Hardware    Co.    v. 

167 


§§  145,  146        FEEEDOM  OF  CONTRACT.  Ch.  4 

long  to  him  and  not  in  his  possession.  Thus,  a  sale  by  a  tenant 
of  a  crop  raised  on  the  leased  premises,  and  no  delivery 
made,  he  having  abandoned  the  premises,  is  void.  After 
the  abandonment  by  the  tenant,  the  possessory  right  in  what- 
ever was  upon  the  premises  reverted  to  the  owner  of  the  land, 
and  there  was  no  possession  in  the  tenant  at  the  time  of  the 
proposed  sale.^  It  may  be  a  question  for  the  jury  whether  there 
has  been  such  an  acceptance  and  receipt  of  the  chattels  as  to 
take  the  contract  out  of  the  statute.^ 

Acceptance  and  delivery  need  not  be  simultaneous,  but  either 
may  take  place  before  the  other;®  and  delivery  may  be  subse- 
quent to  the  agreement.  ^°  In  most  States  a  delivery  on  Sunday 
is  void,  but  the  goods  may  be  accepted  subsequently,  when  the 
sale  will  be  valid. ^^  And  surrender  of  a  farm  and  tools  to  a 
vendee,  makes  the  sale  of  the  tools  valid.-^^ 

§  146.  Contracts  for  work  and  labor. —  When  work  and 
labor  are  to  be  bestowed  by  the  vendor  upon  the  article  sold 
before  it  is  to  be  delivered  some  courts  hold  that  the  contract 
is  not  within  the  statute.^  That  is  where  a  mechanic  furnishes 
articles,  it  is  generally  held  that  an  oral  bargain  for  the  making 
of  the  thing  is  good.^    But  where  a  manufacturer  produces  the 

Mullen,  33  Minn.   195,  22  N.   294;  061,    4    Am.    Rep.    721;    Victor    v. 

Caulkins  v.  Hellman,  47  N.  Y.  449,  Stroock,   15   Daly    (N.  Y.),   329,  5 

7  Am.  Eep.  461;   Ex  parte  Parker,  N.  Y.  S.  659,  7  N.  Y.  S.  959. 

11    Neb.    309,    9    N.    33;    Smith   v.  10.  Ortloff  v.  Klitzke,  43  Minn. 

Brennan,   62   Mich.   349,   28   N.   W.  154,   44  N.   W.   1085;   McCarthy  v. 

892,    4    Am.    St.    Rep.    867;     Fon-  Nash,   14  Minn.  95;   Gaslin  v.  Pin- 

taine  v.  Bush,  40  Minn.   141,  41  N.  ney,  24  Minn.  322. 

W.  465,  12  Am.  St.  Rep.  722;  Shaw  11.  Schmidt  v.  Thomas,  75  Wis. 

Lumber    Co.   v.   Manville,    4   Idaho,  529,  44  N.  W.  791. 

369,  39  P.  559;    Crosby  Hardware  12.  Wilkinson  v.  Wilkinson,  61 

Co.  V.  Tester,  90  Wis.  412,  63  N.  W.  Vt.  409,  47  A.  795. 

1057.  1.  Eichelberger    v.    McCauley,    5 

7.  Maclary  v.  Turner,  9  Houst.  Harr.  &  J.  (Md.)  213,  9  Am.  Dec. 
(Del.)    281,  32  A.  325.  514;   Rentch  v.  Long,  27  Md.   188; 

8.  Becker  v.  Holm,  89  Wis.  86,  Bagley  v.  Walker,  78  Md.  239,  27 
61  N.  W.  307.  A.  1033. 

9.  Amson  v.  Dreher,  35  Wis.  2.  Parsons  v.  Loucks,  48  N.  Y. 
616;   Cross  v.   O'Donnell,   44  N.   Y.  17,  8  Am.  Rep.  517;  Crookshank  v. 

168 


Ch.    4  STATUTE  OF  FRAUDS.  §§  146,  147 

goods  in  the  usual  course  of  his  business,  the  contract  is  one  of 
sale  and  not  for  the  bestowal  of  work  and  labor.^  A  contract 
for  the  sale  of  the  whole  of  a  crop  for  a  certain  year,  to  be  de- 
livered at  a  certain  price,  as  soon  as  it  can  be  gathered  and  pre- 
pared for  market,  is  within  the  statute.* 

To  make  the  case  one  for  work  and  labor,  the  contract  should 
contemplate  or  require  some  change  in  the  condition,  business, 
or  circumstances  of  the  vendor.^ 

In  some  States  a  distinction  is  made  between  chattels  in  ex- 
istence and  goods  to  be  manufactured.  When  the  goods  are  in 
existence,  then  it  is  a  contract  of  sale;  if  to  be  manufactured 
then  a  contract  of  work  and  labor.®  It  is  held  that  if  the  thing 
sold  exists  at  the  time  in  solido,  the  mere  fact  that  the  seller  is 
to  do  something  to  put  it  in  a  marketable  condition  does  not 
take  the  contract  out  of  the  operation  of  the  statute.^ 

§  147.  What  is  an  acceptance  —  When  question  for  jury. — 
Ordinarily  the  question  of  acceptance  is  one  of  fact.  How- 
ever if  the  uncontroverted  facts  are  such  as  cannot  afford  any 
ground  for  finding  an  acceptance,  or  where,  though  the  court 
may  admit  that  there  is  a  scintilla  of  evidence  tending  to  show 

Burell,    18    Johns.    (N.    Y.)    58,    9  105;   Sawyer  v.  Ware,  36  Ala.  675; 

Am.    Dec.    187    and   note;    Allen   v.  Bird    v.    Muhlinbrink,    1    Rich.    L. 

Jarvis,    20    Conn.    38;    Meincke    v.  (S.  Car.)    199,  44  Am.  Dec.  247. 

Falk,   55   Wis.   427,    13   N.   545,   42  5.  0"Neil   v.   Mining  Co.,   3   Nev. 

Am.  Rep.  722.  141;   Goddard  v.  Binney,  115  Mass. 

3.  Pratt  V.  Miller,  109  Mo.  78,  450,  15  Am.  Rep.  112;  Finney  v. 
18  S.  W.  965,  32  Am.  St.  Rep.  656;  Apgar,  31  N.  J.  L.  267;  Prescott  v. 
Goddard  v.  Binney,  115  Mass.  450.  Locke,   51   N.   H.   94,    12   Am.   Rep. 

4.  Cason  v.  Cheely,  6  Ga.  554;  55;  Crockett  v.  Scribner,  64  Me. 
Mighell  V.  Dougherty,  86  Iowa,  480,  447;  Mixer  v.  Howarth,  21  Pick. 
53  N.  W.  402,  17  L.  R.  A.  755,  41  (Mass.)  205,  32  Am.  Dec.  256. 
Am.  St.  Rep.  511.  See,  also,  Spen-  6.  Higgins  v.  Murray,  73  N.  Y. 
cer  V.  Cone,  11  Met.  (Mass.)  283;  252;  Pawelski  v.  Hargreave,  47  N. 
Lamb  v.  Crafts,  12  Met.  (Mass.)  J.  L.  334,  54  Am.  Rep.  162  and 
353;  Prescott  v.  Locke,  51  N.  H.  note ;  Pitkin  v.  Noyes,  48  N.  H.  294, 
94,    12    Am.    Rep.    55;    Atwater    v.  2  Am.  Rep.  218. 

Hough,    29    Conn.    608;    Finney   v.  7.  DoA\Ties  v.  Ross,  23  Wend.  (N. 

Apgar,  31  N.  J.  L.  266;  Edwards  Y.)  270;  Cooke  v.  Millard,  5  Lans. 
V.  Railroad  Co.,  48  Me.  379,  54  Me.        (N.  Y.)   246. 

169 


§§  147,  148        FUEEDOM  OF  CONTEACT.  Ch.  4- 

an  acceptance,  the  court  could  still  feel  bound  to  set  aside  a 
verdict  finding  an  acceptance  on  the  evidence,  it  is  the  duty  of 
the  court  to  withhold  the  case  from  the  jurj.^  But  otherwise 
the  question  of  acceptance  is  one  of  fact  for  the  jury  upon  all 
the  evidence.^ 

§  148.  Goods  delivered  subject  to  examination  —  Accept- 
ance.—  Performance  of  the  vendor  of  his  part  of  a  verbal  con- 
tract is  not  sufficient  to  give  it  validity,  where  the  buyer  does 
not  perform  his  part.-^  So,  where  goods  are  sold  subject  to  ex- 
amination under  a  verbal  contract,  so  long  as  the  vendee  can, 
without  self-contradiction,  declare  that  the  goods  are  not  to  be 
taken  in  fulfillment  of  the  contract,  he  has  not  accepted  them. 
And  it  is  immaterial  whether  his  refusal  to  take  them  be  rea- 
sonable or  not.^ 

To  constitute  an  acceptance,  it  is  requisite  that  the  purchaser 
shall  have  made  the  examination  and  pronounced  it  satisfactory, 
or  shall  have  dealt  with  the  goods,  or  done  some  unequivocal 
act,  evincing  his  intent  to  accept  them  unconditionally  as  his 
own.  And  although  the  refusal  to  accept  be  unreasonable, 
without  an  acceptance  the  contract  is  not  valid.^ 

In  general  when  the  vendee  takes  upon  himself  to  exercise  a 
dominion  over  the  property,  and  deals  with  it  in  a  manner  in- 
consistent with  the  rights  of  property  or  the  title  being  in  the 
vendor,  that  is  evidence  of  its  acceptance.*  When  the  contract 
is  for  the  purchase  of  articles  to  be  selected  by  the  vendor  from 
a  large  number  of  similar  articles,  to  set  aside  for  the  buyer, 
there  is  no  sale  until  the  buyer  has  examined  and  accepted 
them.^ 

8.  Denny    v.    Williams,    5    Allen  598;  Hewes  v.  Jordan,  39  Md.  472; 
(Mass.),  5;  Howard  v.  Borden,  13  Knight  v.  Mann,  118  Mass.  143. 
Allen      (Mass.),     299;      Stone     v.  3.  Stone  v.  Browning,  68  N.  Y. 
Browning,  68  N.  Y.  598.  598. 

9.  Garfield  v.   Paris,  96  U.  S.  557.  4.  Morton   v.    Tibbett,    15    Q.    B. 

1.  Stone  V.   Browning,   51   N.   Y.        428. 

211,  68  N.  Y.  598;  Caulkins  v.  Hell-  5.  Cusack  v.   Robinson,   1    Smith 

man,  47  N.  Y.  449,  7  Am.  Rep.  461.        &  B.  299;   Bog  Lead  Mining  Co.  v. 

2.  Stone  v.   Browning,   68   N.   Y.        Montague,    10    C.    B.,    N.    S.    481; 

170 


Ch.  4  STATUTE  OF  FEAUDS.  §§  149,  150 

§  149.  Intention. —  To  constitute  an  acceptance  the  vendee 
must  deal  with  the  paper  in  such  a  manner  as  to  evidence  his 
acknowledgment  of  the  contract.  The  property  must  be  com- 
pletely transferred,  which  includes  both  delivery  by  the  vendor 
and  acceptance  by  the  vendee.  There  must  be  a  delivery  of  the 
goods  by  the  vendor  with  an  intention  of  vesting  the  right  of 
possession  in  the  vendee,  and  there  must  be  an  actual  receiving 
and  acceptance  by  the  latter  with  the  intention  of  taking  pos- 
session as  owner. ^  The  intention  of  the  parties  at  the  time  as  to 
the  delivery  must  prevail,  even  if  there  be  something  yet  to  be 
done  to  complete  it.^ 

§  150.     Property  in  possession  of  a  third  person. —  Many 

cases  hold  that  the  delivery  is  complete  between  the  parties, 
everything  else  being  done,  upon  receipt  of  the  order  for  the 
delivery  of  the  property  when  in  the  keeping  of  another  person 
and  in  another  place.^  And  when  the  possession  is  obtained 
from  the  third  person  by  fraud  of  the  vendee,  it  may  be  treated 
by  the  vendor  as  a  delivery  to  complete  the  sale  at  his  option.* 
It  is  the  fact  of  delivery  under  and  in  pursuance  of  the  agree- 

Coombs  V.  Railroad  Co.,  3  Hurls.  &  11  Iowa,  32;   McLaughlin  v.  Piatt, 

Nor.    510;     Ivnight    v.    Mann,    118  27  Cal.  451. 

Mass.   143;   New  England,  etc.,  Co.  1.  tStone   v.   Browning,   51    N.   Y. 

V.   Worsted  Co.,   165  Mass.  328,  43  211;  Oilman  v.  Hill,  36  N.  H.  311; 

N.  E.  112,  52  Am.  St.  Rep.  516;  The  Redington  v.   Roberts,  25   Vt.   686; 

Elgie   Cotton   Cases,   22   Wall.    (U.  Galvin    v.    Kenneth,    21    Oreg.    184, 

S.)    180;   Hatch  v.  Oil  Co.,   100  U.  24  P.  1039. 

S.  124;  Morrison  V.  uingley,  63  Me.  2.  Sewell   v.   Eaton,   6   Wis.   490, 

553;  Bailey  V.  Smitn,  43  N.  H.  141;  70   Am.   Dec.   471;    Fletcher   v.   In- 

Halderman   v.   Duncan,   51    Pa.    St.  gram,  46  Wis.   191,  50  N.  W.  424; 

66 ;    Hahn   v.   Fredericks,   30   Mich.  Kirby  v.  Johnson,  22  Mo.  354 ;  Hen- 

223,    18    Am.    Rep.    119;    Vv'oods   v.  line  v.  Hall,  4  Ind.  189;   Gough  v. 

McGee,   7   Ohio,   467;    Browning  v.  Edelen,  5  Gill    (Md.),  101;    Foster 

Hamilton,  42  Ala.  484;  Commercial  v.  Ropes,  111  Mass.  10. 
Nat.  Bank  v.  Gillette,  90  Ind.  268,  3.  Ranney  v.  Higby,  4  Wis.  154; 

46     Am.     Rep.     222;     Ferguson    v.  Magee  v.  Billingsly,  3  Ala.  679. 
Bank,  14  Bush.    (Ky.)   555,  29  Am.  4.  Weed    v.    Page,    7    Wis.    503; 

Rep.   418;    Baldwin   v.   McKay,   41  Somers  v.  McLaughlin,  57  Wis.  358, 

Miss.    358;     Upham    v.    Dodd,    24  15  N.  442. 
Ark.    545;    Courtright   v.    Leonard, 

171 


§§  150,  151        FREEDOM  OF  CONTRACT.  Oh.    4 

ment  of  sale,  not  the  time  when  the  delivery  is  made,  that  the 
statute  renders  essential  to  the  proof  of  a  valid  contract;  so 
that  a  delivery  at  a  future  day  is  sufficient  if  made  in  pursuance 
of  the  contract^  And  upon  the  same  principle,  the  place  of 
delivery  can  make  no  difference.^  And  so  when  an  order  is 
made  to  deliver  the  property  at  a  designated  place,  and  it  is 
delivered  at  such  place,  it  is  sufficient,  and  the  acceptance  is 
complete  when  the  bargain  was  made.^ 

§  151.  Acts  which  amount  to  an  acceptance. —  Any  une- 
quivocal act  or  acts  on  the  part  of  the  vendee  which  amount  to 
an  assertion  of  ownership  of  the  property  is  sufficient  to  take 
the  sale  out  of  the  statute.  Acts  of  ownership  consistent  with 
the  intent  to  keep  the  property  are  often  sufficient  and  some- 
times conclusive  evidence  of  acceptance.^  The  act  or  acts  relied 
upon  as  constituting  a  receipt  and  acceptance  must  establish, 
the  relation  between  the  parties  of  vendor  and  vendee.^  The  ac- 
ceptance and  receipt  contemplated  by  the  statute  and  as  ad- 
judged by  the  cases,  must  always  be  governed  by  the  circum- 
stances surrounding  the  transaction,  as  to  whether  there  has 
been  such  acceptance  and  receipt.^"  Whether  the  buyer  has  ac- 
cepted, depends  upon  the  fact  and  circumstances  of  each  sep- 
arate transaction.^^ 

In  the  earlier  decisions,  slight  acts  were  considered  as  suffi- 
ciently evidencing  acceptance  and  receipt,  but  the  later  cases 
are  much  more  strict,  evincing  a  determination  by  the  courts 
to  give  full  effect  to  the  design  and  spirit  as  well  as  the  letter  o£ 
the  statute.^^ 

5.  Marsh  v.  Hyde,  3  Gray  (N.  Y.)  283;  Gray  v.  Davis,  10  N. 
(Mass.),    331;    Townsend    v.    Har-        i.  285. 

graves,   118  Mass.   336.  9.  Reneick      v.      Sandford,      120 

6.  Somers  v.  McLaughlin,  57  Wis.       Mass.  309. 

358,  15  N.  442.  10.  Galvin  v.  Kenneth,  21  Oreg. 

7.  Cusack    v.    Robinson,    1    Best       184,  27  P.  1039. 

6  S.  299;  Victor  v.  Strooek,  15  11.  Jones  v.  Bank,  29  Md.  287,  96 
Daly   (N.  Y.),  329,  5  N.  Y.  S.  659,       Am.  Dec.  533. 

7  N.  Y.  S.  959.  12.  Clarke    v.    Marriott,    9    Gill 

8.  Vincent  V.  Germond,  11  Johns.        (Md.),    335;     Jones    v.    Bank,    29 

Md.  287,  96  Am.  Dec.  533. 

172 


Cll.  4:  STATUTE  OF  FRAUDS.  §§  151,  152 

•  •  •    -       d 

All  the  cases  agTee  that  the  receipt  and  acceptance  of  goods 
to  satisfy  the  terms  of  the  statute  must  be  proved  by  clear  and 
unequivocal  acts  on  the  part  of  the  buyer.^^  Mere  delivery  is 
not  sufficient;  there  must  be  actual  acceptance  by  the  buyer  by 
dealing  with  the  goods  as  owner."  In  general  terms  the  rule  is : 
The  clear  and  unequivocal  acts,  showing  an  acceptance,  or  from 
which  an  acceptance  may  be  inferred,  must  relate  to  some  deal- 
ing with  the  property  itself  by  the  buyer  or  his  authorized  agent 
after  the  delivery  of  the  whole  or  part  of  it.^^ 

§  152.  Designation  of  carrier  by  vendee  —  Delivery  of 
goods. —  The  mere  designation  of  a  carrier  by  the  vendee,  and 
delivery  of  the  goods  to,  and  receipt  of  them  by  him  as  carrier, 
do  not  make  such  acceptance  and  receipt  as  the  statute  requires.-^ 

The  authorities  hold,  with  no  conflict,  that  the  acceptance  and 
receipt  which  the  statute  requires,  may  be  made  by  an  agent 
of  the  buyer  empowered  for  that  purpose ;  but  the  weight  of 
authority  both  in  England  and  America  is,  that  the  agency  to 
accept  and  receive  cannot  be  inferred  from  the  mere  fact  that 
the  buyer  has  designated  a  particular  vessel  or  person  as  car- 
rier of  goods.  In  an  early  case,^  where  goods  ordered  verbally 
were  shipped  by  the  seller  by  a  certain  vessel  according  to  the 
customary  dealings  between  the  parties,  it  was  held,  the  buyer 
must  be  considered  as  having  constituted  the  master  of  the  ves- 
sel as  his  agent  to  accept  and  receive  the  goods.     In  another 

13.  Davis  V.  Eastman,  1  Allen  bett,  15  Q.  B.  428;  Chaplin  v.  Rog- 
(Mass.),  422;    Denny  v.  Williams,       ers,     1     East,    192;     Blenkinsop    v. 

5    Allen     (Mass.),     1;    Johnson    v.  Clayton,   7    Taunt.   497.      See,   also. 

Cuttle,   105  Mass.  447,  7  Am.  Rep.  Spear  v.  Bach,  82  Wis.   192,  52  N. 

545.  \V.  97. 

14.  Phillips  V.  BisloUi,  2  Barn.  &  1.  Jones  v.  BanK,  29  Md.  287,  96 
Cr.  511.  Am.    Dec.    533;    Frostburg    Mining 

15.  Currie  v.  Anderson,  2  El.  &  Co.  v.  Glass  Co.,  9  Cush.  (Mass.) 
El.  592;   Snow  v.   Warner,   10  Met.  115;    Bushel  v.   Wheeler,    15   Q.   B. 

(Mass.)     132,    43    Am.    Dec.    417;  442;     Coombs    v.    Kailroad    Co.,    3 

Marsh   v.    Hyde,    3    Gray    (Mass.),  Hur.  &  Nor.  510;    Cusack  v.  Rob- 

331;    Ullmann  v.  Barnard,  7  Gray  inson,  1  Best  &  S.  299. 

(Mass.),    554;    Ross    v.    Welch,    11  2.  Hart  v.  Sattley,  3  Camp.  528. 
Gray   (Mass.),  235;  Morton  v.  Tib- 

173 


§§    152-154  FREEDOM    OF    CONTRACT.  Ch.    4 

case/  it  was  held,  that  the  same  result  followed  from  the  goods 
being  delivered  to  a  carrier  designated  by  the  buyer  for  that 
purpose.  The  first  of  these  cases  has  been  expressly  overruled, 
and  the  doctrine  asserted  by  both  entirely  overthrown  by  all  the 
subsequent  adjudications.^ 

§  153.  Earnest  and  part  payment. — The  idea  of  "  earnest," 
in  connection  with  contracts,  was  borrowed  from  the  civil  law.^ 
But  it  seems  that  the  statute  of  frauds  distinguishes  between 
"  earnest,"  and  "  part  payment,"  either  of  which,  if  given  by 
the  vendee,  will  make  a  verbal  contract  valid.^  But  as  used  in 
the  statute,  it  amounts  to  nothing  else  than  part  payment'' 

"  Earnest "  is  not  generally  used  in  modern  statutes,  as  it 
was  suited  to  times  when  the  people  were  illiterate,  before  the 
introduction  of  writing.^ 

§  154.  When  part  payment  must  be  made — In  'New  York^ 
and  Wisconsin^  the  statute  requires  that  the  part  payment  shall 
be  made  "  at  the  time  "  of  the  agreement.  So  when  the  agree- 
ment is  void  for  want  of  "  earnest "  under  these  statutes,  it 
camiot  be  made  valid  by  a  mere  payment  or  tender  of  even  the 
entire  purchase-money  afterwards.     For    that    purpose    there 

3.  Dawes  v.  Peck,  8  Term  R.  330.       Howe  v.  Smith,  27  Ch.  Div.  89,  101, 

4.  Hanson  v.  Armitage,   5   Barn.        102. 

&    Aid.    557;    Astey    v.    Emery,    4  6.  29  Car.  II,  c.  3,  sec.  17. 

Maule  &  S.  262 ;  Acebat  v.  Levy,  10  7.  2   Bl.   Com.   447 ;    Pordage  v. 

Bing.  376;   Norman  v.  Phillips,   14  Cole,    1    Saund.    319b;    Langfort   v. 

Mees.  &  Wei.  277;  Farina  v.  Howe,  Tiler,  1  Salk.  113;  Morton  v.  Tib- 

16   Mees.    &   Wei.    119;    Coombs   v.  bett,  15  Q.  B.  428;  Walker  v.  Nus- 

Railroad  Co.,  3  Hurls.  &  Nor.  510;  sey,  16  Mees.  &  Wei.  302;  Howe  v. 

Hunt  V.  Hecht,  8  Exch.  814;  Bushel  Hayward,    108    Mass.    54,    11    Am. 

V.  Wheeler,  15  Q.  B.  442;   Hart  v.  Rep.  306;   Bissell  v.  Balcom,  39  N. 

Bush,  1  El.,  B.  &  E.  494;   Cusack  Y.  275. 

V.  Robinson,  1  Best  &  S.  299 ;  Nich-  8.  2   Kent's  Com.  495n. 

Olson   V.   Bower,   1   El.   &   El.    172;  1.  Jackson  v.  Tupper,  101  N.  Y. 

Meredith  v.  Meigh,  2  El.  &  B.  363;  515;     Hallenback    v.    Cockran,    20 

Currie  v.  Anderson,    2    El.    &    El.  Hun   (N.  Y.),  416. 

591.  2.  Kerkhof   v.    Atlas   Paper    Co., 

5.  Guterbock's     Bracton,     145;  68  Wis.  674,  32  N.  W.  766. 

174 


Ch.    4  STATUTE    OF    FRAUDS.  §§    154-156 

must  be  a  delivery  and  acceptance  of  the  property  as  well ;  or 
there  must  be  a  distinct  renewal  of  or  assent  to  the  terms  of  the 
original  agreement  so  as  to  make  the  payment  apply  to  a  present 
and  not  to  a  past  agreement  of  sale.^  Ihe  New  York  court 
holds  that  one  after  payment  reaffirms  or  restates  the  terms  of 
the  contract,  and  that  such  payment  is  then  made  at  the  time 
of  the  contract,  and  not  afterwards.* 

The  clause  requiring  payment  of  part  of  the  purchase-price 
at  the  time  of  the  contract  does  not  occur  in  the  other  statutes 
of  the  various  States,  so  it  may  be  made  at  any  time  before  an 
action  on  the  contract.^ 

§  155.  What  constitutes  part  payment. —  To  constitute  part 
payment  the  money  must  be  actually  paid.  A  verbal  stipula- 
tion to  give  and  to  receive  something  in  earnest  to  bind  the  bar- 
gain or  in  part  payment  is  as  much  within  the  statute  as  is  the 
agreement  or  contract  taken  as  a  whole ;  a  note  or  memorandum 
in  relation  to  give  something  in  earnest  to  bind  the  bargain,  or 
in  part  payment,  which  is  insufficient  of  itself  to  take  the  con- 
tract out  of  the  statute,  is  also  insufficient  to  make  the  contract 
binding  upon  either  party.®  A  promise  to  pay  is  not  sufficient, 
nor  is  an  accepted  tender  of  payment  sufficient.'^ 

§  156.  In  what  property  part  payment  may  be  ma'de. —  It  is 

competent  for  parties  to  designate  by  their  contract  how  and  in 
what  payment  may  be  made.  It  may  be  made  in  property  or  in 
service.  Whatever  the  parties  agree  shall  constitute  payment 
will  be  regarded  by  the  court  as  payment  provided  the  thing 
agreed  upon  is  of  some  value.^    So  payment  in  articles  of  prop- 

3.  Bates  v.  Chesbro,  32  Wis.  594 ;  5.  Thompson  v.  Alger,  12  Met. 
Kerkhof  v.  Atlas  Paper  Co.,  68  Wis.        (Mass.)    428. 

674,  32  N.   W.   766;    Crosby  Hard-  6.  Edgerton    v.     Hodge,   41     Vt. 

wood  Co.  V.  Trester,  90  Wis.  412,  63  676. 

N.  W.  1057.  7.  Artcher    v.    Zeb,    5    Hill    (N. 

4.  Hunter  v.  Welsell,  57  N.  Y.  Y.),  200,  205;  Walrath  v.  Ingles, 
375,    84    N.    Y.    549,    15    Am.    Rep.  64  Barb.    (N.  Y.)   265. 

508.  1.  Kuhns   v.   Gates,   92   Ind.   66; 

Tilford  V.  Roberts,  8  Ind.  254. 

175 


§§    156-158  FREEDOM    OF    CONTEACT.  Ch.    4: 

ertj  will  bind  the  bargain  and  prevent  the  operation  of  the 
statute.^  All  that  is  necessary  that  the  payment  be  made  in 
something  of  value,  even  if  "  it  be  but  a  penny."  ^  So  giving 
the  vendor  a  credit  on  an  existing  debt  in  favor  of  the  vendee  is 
part  payment/  or  paying  the  vendor's  debt  to  a  third  party  is 
sufficient.^ 


ARTICLE  IX. 

Eepkesentations  as  to  Credit. 

Section  157.  Statutory  Provisions. 

158.  When  the  Statute  Applies. 

159.  Sufficiency  of  Writing. 

160.  Parol  Evidence. 

§  157.  Statutory  provisions. — The  istatute  generally  provides 
that  no  action  shall  be  brought  to  charge  one  upon  the  represen- 
tation as  to  the  credit  or  trade  of  another  person,  unless  such 
representation  is  in  writing  and  signed  by  the  person  to  be 
charged.  The  various  statutes  are  substantially  the  same.  This 
statute  is  intended  to  reach  cases  where  the  plaintiff  has  dealt 
with  and  given  credit  to  the  person  favorably  mentioned,  and 
done  so  on  the  faith  on  the  assurances.  It  does  not  apply  to 
conspiracies  or  frauds  where  representations  are  made  to  enable 
the  party  making  the  representation  to  profit  by  it.'^ 

§  158.  When  the  statute  applies. —  Oral  representation  as  to 
the  credit  or  ability  of  another  person  must  be  in  writing  in 
order  to  be  binding  on  the  party  making  the  representation.    A 

2.  Sharp  v.  Carroll,  66  Wis.  62,  Artcher  v.  Zeh,  5  Hill  (N.  Y.),  200. 
27  N.  W.  832;  Dow  v.  Warthen,  4.  Norwegian*  Plow  Co.  v.  Haw- 
37  Vt.  108;  Bach  v.  Owen,  5  Term  thorn,  71  Wis.  529,  37  N.  W.  825. 
K.  409;  Phillips  v.  Ocmulgee  Mills,  5.  Catterill  v.  Stevens,  10  Wis. 
55  Ga.  633;   Hunter  v.  Wetsell,  84  366. 

N.  Y.  549,  38  Am.  Rep.  544;  Combs  1.  Hess  v.  Culver,  77  Mich.  598, 

V.  Bateman,  10  Barb.   (N.  Y.)    573.  43  N.  W.  994,  6  L.  R.  A.  498  and 

3.  Shep.  Touch.  224.  See,  also,  note,  18  Am.  St.  Rep.  421;  Clark  v. 
Langfort    v.    Tiler,    1    Salk.    113;  Hurd,  79  Mich.  130,  44  N.  W.  343. 

1Y6 


Ch.  4  STATUTE  OF  FRAUDS.  §§  158,  159 

representation  bj  an  officer  of  a  corporation  with  reference  to 
its  financial  standing  or  means,  is  made  with  reference  to  the 
credit  or  ability  of  another  person,  and  to  support  an  action 
must  be  in  writing;^  oral  statements  of  an  officer  of  a  corpora- 
tion that  it  owns  certain  specific  property,  if  made  concerning 
its  credit,  ability,  or  trade,  are  within  the  statute.^  And  the 
representation  by  one  that  he  is  the  owner  of  certain  corporate 
stock,  and  that  the  corporation  is  paying  large  dividends,  which 
representations  were  made  for  his  own  benefit  to  induce  another 
to  purchase  his  stock,  are  not  actionable.^  This  statute  applies 
to  cases  where  the  representations  are  made  for  the  purpose  of 
obtaining  a  credit  for  a  person  in  relation  to  whom  the  words 
are  spoken.*  And  it  is  immaterial  that  the  party  making  the 
representation  lias  an  additional  purpose  of  obtaining  an  in- 
direct benefit  to  himself  from  the  transaction.^  And  a  case  is 
not  severed  from  the  operation  of  the  statute  by  the  fact  that 
the  defendant  also,  at  the  same  time  misrepresented  his  own 
financial  standing,  and  made  certain  personal  promises  that  he 
has  not  kept.® 

§  159.  Sufficiency  of  writing. —  The  writing  must  be  clear 
and  explicit  without  ambiguous  phrases.'^  That  a  representa- 
tion has  been  made  in  writing  somewhere,  and  at  some  time  to 
some  person  by  a  person  sought  to  be  charged,  is  not  sufficient. 
It  must  be  made  to  the  person  seeking  to  charge  the  defendant.* 
The  writing  must  be  direct  and  clear  as  to  whom  is  to  be  bound. 
Thus,  where  a  notice  is  signed  by  defendants  as  directors,  no 

1.  Kimball  v.  Comstock,  14  Gray  5.  Mann  v.  Blanchard,  2  Allen 
(Mass.),   508;    Wells  v.   Prince,    15        (Mass.),    386;    Brown    v.    Kimball 

Gray   (Mass.),  562;  Mann  v.  Blan-  Co.,  84  Me.  280,  24  A.  1007. 

chard,  2  Allen    (Mass.),   386;    Mc-  6.  Brown  v.  Kimball  Co.,  84  Me. 

Kinney      v.      Whiting,      8      Allen  280,  24  A.  1007.     See  34  Central  L. 

(Mass.),  207.  Jour.  115. 

2.  Hunnewell  v.  Duxbury,  157  7.  Russell  v.  Clarke,  7  Craneh 
Mass.  1,  31  N.  E.  700.  (U.  S.),  69. 

3.  Hubard  v.  Long,  105  Mich.  8.  Grant  v.  Naylor,  4  Craneh  (U. 
442,  63  N.  W.  644.  S.),224. 

4.  Hunter    v.    Randall,    62    Me. 
423,  16  Am.  Rep.  490. 

177 


§§    159,  160  FEEEDOM    OF    CONTRACT.  Oh.    4 

recovery  can  be  had  from  them  individually  even  if  the  notice 
was  suflScientlj  represented  in  writing.^ 

§  i6o.  Parol  evidence. —  Such  representation  in  writing  can- 
not be  aided  bj  evidence  of  additional  verbal  representations.^ 
AVhere  the  statute  requires  a  writing,  the  writing  not  under  seal 
is  the  evidence  of  the  agreement  and  cannot  be  varied  by  verbal 
additions.^  The  parties  have  reduced  their  meaning  to  ^VTiting 
under  the  statute  and  cannot  adduce  evidence  in  contradiction 
or  alteration  of  it.  The  contract  binds  them,  and  the  writing 
is  conclusive.^ 

9.  First  Nat.  Bank  v.  Sowles,  46  768;    Compare   Grant   v.   Nayor,   4 

Fed.  Rep.  731.  Cranch   (U.  S.),  224. 

1.  First  Nat.  JBank  v.  Sowles,  46  a.  Wake  v.  Harrop,  6  Hurl.  &  N, 
Fed.  Rep.  731.  '/68. 

2.  ¥7akp  V.  Harrop.  6  Hurl.  &  N. 


1T8 


PA.RT   II. 


CONTEACTS  IN  VIOLATION  OF  LAW. 


(179) 


]Pi^RT  II. 

CHAPTER  V. 

Agreements  in  Violation  of  the  Common  li&vr. 


AKTICLE  I. 

Illegal  Contracts. 

Section   161.  Illegal  Contracts  Cannot  be  Enforced. 

162.  Agreement  to  Defraud   Others — Bucket  Shops. 

163.  Agreement  to  Buy  Shares  at  a  Fictitious  Premium. 

164.  Libel. 

165.  Auction     Sales — By   |Bidding. 

166.  Auction    Sales — Englisli  Doctrine. 

167.  Stipulation  not  to  Bid. 

168.  By  Bidding— When  Legal. 

169.  The  Purchase  of  Property  on  Joint  Account. 

§  i6i.  Illegal  contracts  cannot  be  enforced. —  Ex  turpi  causa 
non  oritur  actio  —  no  action  arises  out  o£  an  immoral  considera- 
tion. This  maxim  is  founded  in  good  sense,  and  expresses  a 
clear  and  well-recognized  principle,  which  is  not  confined  to  in- 
dictments. No  court  will  enforce  an  illegal  contract  or  allow 
itself  to  be  made  the  instrument  of  enforcing  obligations  al- 
leged to  arise  out  of  a  contract  or  transaction  which  is  illegal, 
if  the  illegality  is  duly  brought  to  the  notice  of  the  court,  and 
if  the  person  invoking  the  aid  of  the  court  is  himself  implicated 
in  the  illegality.  It  matters  not  whether  the  defendant  has 
pleaded  the  illegality  or  whether  he  has  not.  If  the  evidence 
adduced  by  the  plaintiff  proves  the  illegality  the  court  ought  not 
to  assist  him.^     If  the  plaintiff  cannot  maintain  his  cause  of 

1.  Holman  v.  Johnson,  Cowp. 
343.  See,  also,  Pearce  v.  Brooks, 
L.  R.  1  Exch.  213. 

181 


§§    161,  162  CONTRACTS    IN    VIOLATION    OF    LAW.  Ch.    5 

action  without  showing,  as  a  part  of  such  cause  of  action,  that 
he  has  been  guilty  of  illegality,  then  the  court  will  not  assist 
him  in  his  cause  of  action,  where  the  illegality  is  pleaded,^  or 
where  it  is  not  pleaded,  but  the  fraud  is  apparent.^ 

§  162.  Agreement  to  defraud  others — Bucket  shops. —  If 
two  or  more  persons  agree  to  cheat  and  defraud  others  by  means 
of  deceit  and  fraud,  each  is  indictable  for  a  criminal  conspiracy 
at  common  law.  Thus,  it  is  a  criminal  conspiracy  for  two  or 
more  to  agree  by  false  rumors  to  endeavor  to  raise  the  price  of 
the  public  funds  on  a  particular  day.*  And  so  an  agreement 
by  two  or  more  to  cheat  and  defraud  by  means  of  false  pretenses 
those  who  might  buy  shares  in  a  company  is  an  indictable  of- 
fense.^ When  the  plaintiff  cannot  present  his  case  to  a  jury 
without  necessarily  disclosing  the  unlawful  purpose,  he  cannot 
sustain  his  action  because  of  its  illegality.^ 

This  principle  of  law  applies  especially  to  bucket  shops  to 
be  found  in  all  large  cities.  A  bucket  shop  is  a  brokerage  office 
where  orders  are  never  executed  and  the  funds  of  customers  are 
fraudulently  appropriated.  A  bucket  shop  generally  has  an 
extensive  suite  of  rooms  fitted  up  with  all  the  paraphernalia  of 
a  stock  exchange  house.  Operators  appear  to  be  receiving  dis- 
patches over  private  wires,  and  many  clerks  are  busy  posting 
quotations  on  the  bulletin  boards.  But  the  private  wires  do  not 
go  outside  the  building,  but  lead  only  to  a  basement  room  where 
dispatches  are  sent  and  the  fraud  directed.  AJ.1  the  business  is 
done  on  a  one  or  two  point  margin,  no  customer  being  allowed 
to  put  up  more  than  five  points. 

So,  if  persons  buy  stock  on  a  one-point  margin  the  manager 
of  the  office  gives  the  signal  for  a  fictitious  quotation  of  one 

2.  Taylor  v.  Chester,  L.  R.  4  Q.  D.  730,  2  Q.  B.  D.  48.  See,  also, 
B.  309.  Reg.   v.    Hudson,    Bell,    C.   C.    263  j 

3.  Begbie    v.    Phosphate    Sewage       Allen  v.  Rescons,  2  Lev.  174. 

Co.,  L.  R.  10  Q.  B.  '±>)1.  6.  Simpson    v.    Bloss,    7    Taunt. 

4.  Rex.  V.  Berenger,  3  Maule  &  S.  246 ;  Jones  v.  Yates,  9  Barn.  &  Cr. 
67.  501 ;  Fivaz  v.  Nichalls,  2  C.  B.  501. 

5.  Reg.    V.    Aspinall,     1     Q.    B. 

182 


Ch.    5  AGItEEMENTS    IN    VIOLATION    OF    LAW.  §§    162,  163 

point  loAver,  which  wipes  out  the  contingent  and  the  oflBce  buck- 
ets the  proceeds,  which  sometimes  amount  to  $10,000  or  $15,000 
in  a  single  stock. 

In  cases  where  fictitious  quotations  are  not  possible,  the  more 
wealthy  bucket  shop  men  club  together  and  depress  values  on 
the  regular  stock  exchange  to  a  point  where  their  customers' 
margins  become  exhausted.  In  this  way  the  bucket  shop  al- 
ways wins,  except  in  a  continuously  rising  stock  market,  when 
the  concerns  are  sometimes  forced  to  the  wall.  The  public  as  a 
rule  only  buys  for  an  advance  and  never  sells  short.  All  such 
transactions  are  fraudulent  and  void. 

§  163.  Agreement  to  buy  shares  at  a  fictitious  premium. — 
An  agreement  between  two  or  more  to  purchase  shares  in  a 
company  in  order  to  induce  persons  who  might  thereafter  pur- 
chase shares  in  such  company  to  believe,  contrary  to  fact,  that 
there  was  a  bona  fide  market  for  its  shares,  and  that  the  shares 
were  at  a  real  premium,  is  an  illegal  transaction  and  may  be 
made  the  subject  of  an  indictment  for  conspiracy,  and  no  action 
can  be  maintained  in  respect  of  such  agreement  or  purchase  of 
shares.^  And  so  there  can  be  an  indictment  for  conspiracy  by 
false  rumors  to  raise  the  price  of  government  funds  with  intent 
to  injure  those  who  should  purchase.  Because  a  public  mischief 
is  stated  as  the  object  of  this  conspiracy,  the  conspiracy  is  by 
false  rumors  to  raise  the  price  of  the  public  funds  and  securities, 
and  the  crime  lies  in  the  fact  of  conspiracy  and  combination  to 
effect  that  purpose,  and  will  be  complete,  although  it  be  not 
pursued  to  its  consequences,  or  the  parties  have  not  been  able 
to  carry  it  into  effect.^  Such  contract  strikes  at  the  price  of  a 
vendible  commodity  in  the  market,  and  if  it  gives  it  a  fictitious 
price,  by  means  of  false  rumors,  it  is  a  fraud  leveled  against  tie 
public,  for  it  is  against  all  such  as  may  possibly  have  anything 
to  do  with  the  fimds  on  that  particular  day.    It  is  a  perpetration 

1.  Scott  V.   Brown    (1892),  2   Q.  2.    Rex   v.    Berenger,    3   Maule  & 

B.  724.  S.  67. 


183 


§§    163,  164  CONTRACTS    IN    VIOLATION    OF    LAW.  Ch.     5 

of  a  fraud  on  the  public.^     Whatever  contract  is  contrary  to 
positive  law  cannot  be  enforced.* 

§  164.  Libel. — <^\n  agreement  contemplating  a  publication  of 
a  libel  is  illegal.  Hence,  no  action  will  lie  to  recover  compen- 
sation for  printing  and  publishing  a  libelous  book,  or  for  breach 
of  such  contract,  or  any  agreement  to  indemnify  against  liabil- 
ity for  publishing  it.^  This  is  so  because  the  whole  contract  is 
tainted  with  illegality,  and  neither  party  is  bound  to  perform.® 

To  render  the  contract  unlawful,  it  should  appear  that  there 
was  an  intention  on  the  part  of  the  author  and  publisher  to 
write  and  publish  libelous  matter,  or  that  the  author  proposed, 
with  the  knowledge  and  acquiescence  of  the  publisher,  to  write 
libelous  matter,  or  that  the  contract  on  its  face  provided  for  or 
promoted  an  illegal  act ;  if  this  is  not  the  nature  of  the  contract 
then  it  is  valid.^ 

If  a  publisher  denounces  a  fraud,  it  is  no  libel.  Thus,  where 
a  healer  endeavors  to  cure  an  absent  patient  by  telepathic 
methods,  a  newspaper  has  a  right  to  warn  the  public  of  such 
practice  as  a  fraud,  and  cannot  be  held  for  damages.^ 

3.  Materne  v.  Horwitz,  101  N.  Y.  ruff  v.  Wentworth,  133  Mass.  309; 
469;  Jerome  v.  Bigelow,  66  111.  452,  Bishop  v.  Palmer,  146  Mass.  469, 
16  Am.  Rep.  597.  16  N.  E.  299,  4  Am.  St.  Rep.  339; 

4.  Woostock  Iron  Co.  v.  Lound  v.  Grimwade,  39  Ch.  D.  605, 
Extension  Co.,   129  U.  S.  643,  9  S.        613. 

Ct.    402;    McCall    v.    Capehart,    20  7.  Fletcher    v.    Harcat,    Hutton, 

Ala.    521;    Gray    v.    Reynolds,    65  55;    Battersey's    Case,    Winch,    48; 

Iowa,  461,  21  N.  W.   777,  54  Am.  Betts  v.  Gibbins,  2  Ad.  &  El.   57; 

Rep.    16;    Thomas   v.    Caulkett,    57  Jewett    Pub.    Co.    v.    Butler,    159 

Mich.  392,  24  N.  W.  154.  Mass.  517,  34  N.  E.  108,  22  L.  R.  A. 

5.  bhackell  v.  Rosier,  2  Bing.  253;  Adamson  v.  Jarvis,  4  Bing. 
N.  C.  634;  Colburn  v.  Patmore,  1  66;  Waugh  v.  Morris,  L.  R.  8,  Q. 
Cromp.  M.  &  R.  73;  Gale  v.  Leckie,  B.  202;  Pearce  v.  Brooks,  L.  R.  1 
2  Stack.  107 ;  Clay  V.  Yates,  1  Hurl.  Exch.  213;  Cannan  v.  Bryce,  3 
&  N.  73;  Arnold  v.  CliflFord,  2  Sum-  Barn.  &  Aid.  179;  Graves  v.  John- 
ner,  C.  C.  238.  See,  also,  Brad-  son,  156  Mass.  211,  30  N.  E.  818, 
laugh  V.  Newdegate,  11  Q.  B.  D.  1,  15  L.  R.  A.  834  and  note,  32  Am. 
12;  Babcock  v.  Terry,  97  Mass.  482.  St.  Rep.  446  and  note. 

6.  Robinson  v.  Green,  3  Met.  8.  Weltmer  v.  Bishop,  171  Mo. 
(Mass.)    159,  161;  Perkins  v.  Cum-        110,  71  S.  W.  167. 

mings,  2  Gray  (Mass.),  258;  Wood- 

184 


Ch.    5  AGREEMENTS    IN    VIOLATION    OF    LAW.         §§    165,  166 

§  165.  Auction  sales — By-bidding. —  There  is  some  diversity 
in  the  decisions,  as  to  the  circumstances  under  which  by-bidding 
will  invalidate  a  sale  at  auction.  But  when  the  sale  is  adver- 
tised or  stated  to  be  without  reserve,  the  secret  employment  by 
the  seller  of  puffers  or  by-bidders  renders  the  sale  voidable  by 
the  buyer.^  The  offer  at  auction  without  reserve  is  an  implied 
guaranty  that  the  property  is  to  be  sold  to  the  highest  bidder, 
and  each  bidder  has  the  right  to  assume  that  all  previous  bids 
are  genuine.  If  the  buyer  succeeds  in  proving  his  allegation  of 
the  seller's  fraud  by  employing  by-bidders,  the  seller  cannot 
maintain  his  action  against  him,  and  he  is  entitled  to  recover 
back  the  deposit  paid  to  the  auctioneer.' 

Any  agreement  entered  into  for  the  purpose  of  preventing 
competition  at  an  auction  sale  is  unlawful  and  void.'  If  two 
or  more  persons  in  actual  competition  intend  bidding  for  an 
acticle,  agree  that  one  shall  abstain  from  bidding  and  the  profits 
shall  be  divided,  the  courts  will  not  enforce  such  a  bargain.* 

§  166.  Auction  sales — English  doctrine.  —In  England  the 
doctrine  is  strongly  expressed  that  all  secret  arrangements  calcu- 
lated to  mislead  and  deceive  purchasers  or  vendors  are  invalid, 
as  the  strict  observance  of  good  faith  and  fair  dealing  is  es- 

1.  Phippen  v.  Stickney,  3  Met.  Minn  v.  Phipps,  3  Sneed  (Tenn. ), 
384;  Towle  v.  Leavitt,  23  N.  H.  19G;  Small  v.  Jones,  6  Watts  &  S. 
360,  55  Am.  Dec.  195;  Veazie  v.  (Pa.)  128,  40  Am.  Dec.  545;  Jones 
Williams,  8  How.  (U.  S.)  134;  v.  Fulcord,  5  Tex.  512,  55  Am.  Dec. 
Thornett  v.  Haines,  15  Mees.  &  743;  Barton  v.  Benson,  126  Pa. 
Wei.  367;  Eay  v.  Mackin,  100  111.  St.  431,  17  A.  642,  12  Am.  St.  Rep. 
246;  Gardner,  v.  Morse,  25  Me.  140;  883. 

Wooten  V.  Hinkle,  20  Mo.  290.  4.  Lloyd    v.    ]\Ialone,    23    111.   43, 

2.  Thornett  v.  Haines,  15  Mees.  74  Am.  Dec.  179  and  note;  Doolin 
&  Wei.  367;  Curtis  v.  Aspinwall,  v.  Ward,  6  Johns.  (N.  Y.)  194;  Jen- 
114  Mass.  187,  19  Am.  Kep.  332.  kins  v.  Frink,  30  Cal.  586,  89  Am. 

3.  Goldman  v.  Oppenheim,  118  Dec.  134;  Gibbs  v.  Smith,  115 
Ind.  95,  20  N.  E.  635;  Atcheson  v.  Mass.  592;  Gardiner  v.  Morse,  25 
Mallon,  43  N.  Y.  147,  3  Am.  Rep.  Me.  140;  Baggott  v.  Sawyer,  25  S. 
678;  Bresbane  v.  Adams,  o  N.  Y.  Car.  405;  Wooten  v.  Hinkle,  20 
129;  Hunter  v.  Pfeiflfer,  108  Ind.  Mo.  290;  Compare  Galton  v. 
197,  9  N.  E.   124;   Smith  v.  Green-  Emuss,   1   Collyer,   243. 

lee,    2    Dev.     (M.    Car.)     729;    Mc- 

185 


§§    166-168  CONTKACTS    IN    VIOLATION    OF    LAW.  Ch.    5 

sential  to  the  validity  of  such  sales/  Hence,  this  doctrine  ap- 
plies where  the  owner  of  the  estate,  that  was  offered  for  sale  at 
auction,  employed  puffers  to  bid  at  the  auction ;  as  this  was 
fraud  upon  the  bidders,  and  was  sufficient  to  avoid  the  sale.^ 
But  this  doctrine  was  questioned  by  some  of  the  English  de- 
cisions.^ But  the  more  recent  cases  countenance  the  early  doc- 
trine of  the  English  courts.'* 

§  167.  Stipulation  not  to  bid.  —  In  the  American  courts, 
there  is  some  diversity  of  views  upon  this  subject.  It  is  held 
that  contracts  by  which  one  party  stipulates  not  to  bid  against 
another  at  an  auction  sale,  or  an  agreement  by  one  to  bid  for 
the  benefit  of  himself  and  the  other  party,  cannot  be  enforced 
in  a  court  of  law.  The  doctrine  is  based  upon  the  ground  that 
such  a  contract  is  nudum  pactum,  being  without  consideration, 
and  that  it  is  against  public  policy  and  fraud  upon  the  vendor.^ 

§  168.  By-bidding  —  When  legal.  —  It  seems  that  the  em- 
ployment of  a  bidder  by  the  owner  will  or  will  not  be  fraud, 
according  to  the  circumstances  of  the  case,  as  they  tend  to  show 
innocence  of  intention  or  fraudulent  design.®  So  by-bidding 
may  be  allowed  in  auction  sales,  if  it  be  bona  fide,  and  for  the 
sole  purpose  of  preventing  a  sacrifice  of  the  property  offered 
for  sale.^  While  the  general  doctrine  is  that  a  sale  may  be 
avoided  when  made  to  one  in  behalf  of  an  association  of  bidders 

1.  Beckwell    v.    Christie,    Cowp.  5.  Jones    v.    Caswell,     3    Johns. 

395.     See,  also,  Crowder  v.  Austin,  Cas.  (ISJ.  y.)  29;  Doolin  v.  Ward,  6 

2  Car.  &  P.  208;  Wheeler  v.  Col-  Johns.  (^.  Y.)  194;  Wilbur  v.  How, 
lier,  1  Mood.  &  Malk.  123;  Fuller  8  Johns.  (N.  Y.)  444;  Thompson 
V.  Abrahams,  3  Brod.  &  Bing.  116,  v.  Davies,  13  Johns  (N.  Y.)  112; 
6  Moore,  316.  Piatt   v.    Oliver,    1    McLean,    C.    C. 

2.  Howard  v.  Castle,  6  Term  R.  295;  Gulick  v.  Ward,  5  Halst.  (N. 
642.  J.)   87,  18  Am.  Dec.  389. 

3.  Connelly    v.    Parsons,    3    Ves.  6.  2  Kent's  Com.  529. 

625;   Smith  v.  Clark,  12  Ves.  477.  7.  Wolfe  v.  Luyster,  1  Hall    (N. 

4.  Crowder  v.  Austin,  2  Car.  &  Y.),  146;  Jenkins  v.  Hogg,  2  Cost. 
P.  208;  Wheeler  v.  Collier,  1  Mood.         (S.  Car.)    821. 

&  Malk.    123;   Fuller  v.  Abrahams, 

3  Brod.  &  Bing.  116,  6  Moore,  316. 

186 


Ob.    5  AGREEMENTS    IN    VIOI^VTION    OF    LAW.  §§     108-170 

designed  to  stifle  competition,  yet  this  rule  does  not  apply  to  an 
association  of  bidders  formed  for  bonest  and  proper  purposes.' 

§  169.  The  purchase  of  property  on  joint  account. —  The 
mere  fact  that  an  arrangement  is  entered  into  by  parties  having 
an  interest  in  property'  about  to  be  sold  at  public  judicial  or 
other  sale  with  honest  motives  for  the  purpose  of  preserving 
their  interests  is  not  invalid,  though  it  may  incidentally  restrict 
competition  upon  such  sale.^  Parties  may  unite  to  purchase 
property  on  their  joint  account  when  the  combination  is  honest 
and  bona  fide.'  If  the  arrangement  is  entered  into  for  no 
fraudulent  purpose,  but  for  mutual  convenience  of  the  parties, 
as  with  a  view  of  enabling  them  to  become  purchasers,  each  be- 
ing desirous  of  purchasing  a  part  of  the  property  offered  for 
sale,  and  not  an  entire  lot,  or  is  induced  by  any  other  reasonable 
and  honest  purpose,  such  agreement  will  be  valid  and  binding.^ 


ARTICLE  11. 

Insolvency. 

Section   170.  Assignment  for  Benefit  of  Creditors. 

171.  Composition  Agreement — Insolvency. 

172.  Secret  Preferences. 

§  170.  Assignment  for  benefit  of  creditors. —  A  debtor  may 
make  an  assignment  for  the  benefit  of  his  creditors  where  the 
statute  does  not  provide  for  such  proceedings.     The  solvency  of 

8.  Smith  V.  Greenlee,  2  Dev.   (Jf.  2.  Phippen    v.    Stickney,    3    Met. 

Car.)    12G,   18  Am.  Dec.  564;   Phip-  (Mass.)    388;    Garrett   v.   Moss,   20 

pen    V.    Stickney,    3    Met.     (Mass.)  J 11.   549. 

384.  3.  Smull  v.  Jones,  1  Watts  &  S. 

1.  Marie  v.  Garrison,  83  N.  Y.  (Pa.)  128;  Gibbs  v.  Smith.  115 
14;  Kearney  v.  Taylor,  15  How.  Mass.  592;  Jenkins  v.  Frink,  30 
(U.  S.)  496;  Wicker  v.  Hoppoch,  Cal.  586,  89  Am.  Dec.  134;  Switzer 
6  Wall.  (U.  S.)  529;  Smith  v.  Ul-  v.  Sidles,  3  Gil.  (III.)  529;  Gar- 
man,  58  Md.  183,  42  Am.  Rep.  329;  rett  v.  Moss.  20  111.  549,  44  Am. 
Gibbs   V.    Smith,    115   Mass.    592.  Dec.  723. 

187 


§§    170,  171  CONTRACTS    IN    VIOLATION    OF    LAW,  Ch.     5 

a  debtor,  in  his  own  estimation  or  in  fact,  does  not  invalidate 
his  assignment  of  all  or  any  portion  of  his  property  for  the  pay- 
ment of  his  debts.  But  an  intention  to  hinder  or  delay  his 
creditors  is  fraudulent  and  avoids  the  assignment/  Nor  can 
insolvent  debtor  exercise  his  right  of  giving  preferences  among 
creditors  by  assignment,  so  as  to  secure  himself  the  future  con- 
trol of  the  assigned  property  or  of  its  proceeds.^  Because  the 
reservation  by  the  assignor  of  any  benefit  to  himself,  in  ad- 
dition to  the  payment  of  his  debts,  is  a  fraud  upon  his  creditors, 
which  will  make  the  instrument  void,^  And  so  giving  prefer- 
ence to  certain  creditors,  upon  condition  that  they  should  ac- 
cept the  sums  received  under  the  assignment  in  satisfaction  of 
their  entire  debts,  is  the  reservation  of  such  a  benefit,  and  makes 
the  assignment  fraudulent.* 

The  fraudulent  character  of  an  assignment  does  not  depend 
on  the  assignor's  opinion  that  what  he  does  is  not  fraud  in  law.* 

§  171.  Composition  agreement — Insolvency. —  A  composi- 
tion agreement  is  an  exception  to  the  rule  that  payment  of  part 
of  a  liquidated  debt  is  not  satisfaction  for  the  whole. 
It  is  excepted  because  there  is  a  consideration  to  each 
creditor  for  his  agreement  to  accept  less  than  his  claim 
in  full  payment.  The  composition  is  an  agreement, 
not  merely  between  the  debtor  and  each  creditor,  but  also  be- 
tween the  several  creditors.  The  engagement  of  each  creditor 
to  accept  less  than  his  claim  is  the  consideration  to  each  of  the 
others  for  his  engagement.      So,   any  separate   agreement  by 

1.  Ogden  V.  Peters,  21  N.  Y.  23,  Packer,  12  N.  J.  Eq.  214,  72  Am. 
78  Am.   Dec.    122;    Place  v.   Lang-       Dec.  388. 

worthy,   13  Wis.  629,  80  Am.  Dec.  4.  Grover  v.  Wakeman,  11  Wend. 

758.  (Is.  Y.)    190,  25  Am.  Dec.  624  and 

2.  Haydock  v.  Coope,  53  N.  Y.  note;  Wakeman  v.  Grover,  4  Paige 
68.  (N.  Y.)    23. 

3.  Blacklock  v.  Dobie,  1  C.  P.  5.  Hubbard  v.  McNaughton,  43 
Div.  265;  Grover  v.  Wakeman,  11  Mich.  220,  5  N.  293,  38  Am.  Rep. 
Wend.  (N.  Y.)  190,  25  Am.  Dec.  176.  See,  also,  Price  v.  Haynes, 
624  and  note;  Young  v.  Hail,  6  37  Mich.  487;  Smith  v.  Mitchell, 
Lea      (Tenn.)       175;      Knight      v.  12  Mich.  180. 

188 


Ch.    5  AGREEMENTS    IN    VIOLATION    OF    LAW,         §§    171,  172 

which  one  of  the  creditors  secures  to  himself  benefits  not  con- 
ferred on  the  others,  and  which  agreement  is  not  disclosed  to 
them  before  they  sign  the  composition  agreement,  is  a  fraud 
upon  them.  Such  separate  agreement  is  void  as  to  all  the 
parties/ 

There  is  a  class  of  cases  which  holds  that  even  where  the 
secret  agreement  is  fully  performed  by  payment  of  the  money, 
or  transfer  of  the  property  stipulated,  the  debtor  may,  upon  the 
theory  of  coercion  exercised  over  him  by  the  creditor,  recover  it 
back  from  the  creditor.^  The  creditor  who  has  entered  into  the 
secret  agreement  can  take  no  advantage  from  it,  but  he  will  lose 
the  benefit  of  the  composition,  which  becomes  void.^ 

But  courts  of  great  influence  hold  that  the  secret  agreement 
only  is  void  and  that  the  composition  agreement  is  valid,"*  but 
they  are  in  the  minority. 

§  172.  Secret  preferences. —  As  has  been  stated  a  composition 
agreement  is  an  agreement,  as  well  between  the  creditors  them- 
selves as  between  the  creditors  and  their  debtor,  by  which  each 
agrees  with  the  others  to  receive  the  sum  fixed  by  the  agree- 
ment in  satisfaction  of  his  debt ;  and  the  rule  that  a  secret  pref- 

1.  Howden  v.  Haigh,   11  Adol.  &  2.  Atkinson  v.  Denby,  7  Hurl.  & 

E.    1033;    Atkinson    v.    Denby,    7  N.  933;   Smith  v.  Cuff,  6  Moore  & 

Hurl.  &  N.  933;    Case  v.   Gerrish,  S.    160;    Knight  v.   Hunt,   5   Bing. 

15   Pick.    (Mass.)    49;    Ramsdell  v.  429;    Darlinger  v.  Earle,  82   N.  Y. 

Edgarton,   8   Met.    (Mass.)    227,  41  393. 

Am.    Dec.    503;     Harvey    v.    Hunt,  3.  Clark   v   VVliite,    12    Pet.    (U. 

119    Mass.    279;    Fay   v.    Fay,    121  S.)    178;   MuUalieu  v.  Hodgson,   16 

Mass.    561;     Wiggin    v.    Bush,    12  Q.   B.    G89;    Cobleigh   v.   Pierce,   32 

Johns.    (N.   Y.)    305;    Lawrence   v.  Vt.    788;    O'Shea    v.    Lead   Co.,    42 

Clark,    36   N.   Y.    128;    Continental  Mo.   397,   97   Am.   Dec.   332;    Kull- 

Bank,  v.  McGeoch,  92  Wis.  286,  66  man  v.  Greenebaum,  92  Cal.  403,  28 

N.   W.  606;   Newell  v.  Higgins,   55  P.  674,  27  Am.  St.  Rep.   150;   Hef- 

Minn.   82,    56   N.   W.   577;    Patter-  ter  v.   Cahn,   73   111.   296;    Huckins 

son  V.  Boehm,  4  Pa.  St.  507;   Pow-  v.  Hunt,   138  Mass.  366. 
ers'    Dry   Goods   Co.   v.   Harlin,   68  4.  Hanover   Bank   v.    Blake,    142 

Minn.    193,  71    N.   W.    16,   64  Am.  N.  Y.  404,  37  N.  E.  519,  27  L.  R.  A. 

St.  Rep.  460;  Lee  v.  Sellens,  81  Pa.  33  and  note,  40  Am.  St.  Rep.  607; 

St.     473;     Brown     v.     Nealey,    161  Cheveront  v.  Textor,   53  ild.  295. 
Mass.  1,  36  N.  E.  464. 

189 


§    172  CONTEACTS    IN    VIOLATION    OF    LAW.  Ch.    5 

erence  of  one  or  more  creditors  over  others  invalidates  the  com- 
position agreement  does  not  rest  solely  upon  the  participation  of 
the  debtor  in  the  fraud  and  the  diminution  of  his  actual  assets ; 
but  such  preference,  though  made  by  another  than  the  debtor, 
violates  the  principle  of  equity  and  the  mutual  confidence  as 
between  creditors  upon  which  the  agreement  is  based.^ 

If  the  debtor  knows  of  such  secret  payments  by  his  friends, 
he  is  not  innocent  of  the  imposition  practiced  upon  the  other 
creditors.^  Because  if  the  composition  provides  for  a  pro  rata 
payment  to  all  the  creditors,  a  secret  agreement,  by  which  a 
friend  of  the  debtor  undertakes  to  pay  to  one  of  the  creditors 
more  than  his  pro  rata  share,  to  induce  him  to  unite  in  the  com- 
position, is  as  much  a  fraud  upon  the  other  creditors  as  if  the 
agreement  was  directly  between  the  debtor  and  such  creditor.' 

The  creditor  cannot  sue  for  the  stipulated  composition  if 
accompanied  by  a  secret  agTeement  by  the  debtor  to  give  an  ad- 
ditional benefit,  even  though  the  additional  benefit  was  not  after- 
wards available ;  the  whole  is  an  entire  agreement,  and  the  fraud 
vitiates  the  whole.*  The  principle  being,  not  that  a  party  is 
not  to  be  permitted  to  recover  more  than  others,  but  that  every 
secret  bargain  is  a  fraud  on  the  creditors  and  is  void  when  it  is 
made,  and,  being  executory,  cannot  be  enforced  even  against  a 
fraudulent  party ;  and  Avhere  a  part  is  fraudulent,  the  bargain, 
being  an  entire  thing,  is  altogether  fraudulent  and  void.^ 

The  debtor  is  a  particeps  criminis,  and,  as  well  as  the  credi- 
tor, a  party  to  a  fraud  on  the  creditors,  and  he  cannot  be  allowed 
to  enforce  this  part  of  the  same  fraudulent  executory  agree- 
ment.^   There  are  cases  where  a  particeps  criminis  has  been  al- 

1.  O'Shea  v.  Lead  Co.,  42  Mo.  3.  Solinger  v.  Earle,  82  N.  Y. 
397,    97    Am.    Dec.    332;    Bank    v.       393. 

Hoeber,  88  Mo.  37,  57  Am.  Rep.  359  4.  Howden   v.   Haigh,    11    Ad.   & 

and   note;    O'Brien  v.   Greenebaum,  El.    1033;    Hanover   National   Bank 

92  Cal.  104,  28  P.  214;  Kullman  v.  v.   Blake,   142  N.  Y.  404,  37   N.  E. 

Greenebaum,  92  Cal.  403,  28  P.  674,  519,   19  L.  R.  A.   33   and  note,  40 

27  Am.  St.  Rep.  150.  Am.   St.   Rep.   67. 

2.  Kullman  v.  Greenebaum,  92  5.  Higgins  v.  Pitt,  4  Exch.  372. 
Cal.  403,  28  P.  674,  27  Am.  St.  Rep.  G.  Higgins  v.  Pitt,  4  Exch.  312. 
150. 

190 


Oh.    5  AGREEMENTS    IN    VIOLATION    OF    I^AW.  §    172 

lowed  to  recover  back  money  paid  as  the  consideration  for  an 
illegal  act,  where,  though  guilty,  he  is  not  in  pari  delicto;  as  a 
bankrupt  who  has  paid  money  to  obtain  his  certificate,  or  a 
borrower,  the  premium  of  usury.^  In  such  cases,  the  law  con- 
siders that  he  is  oppressed,  and  advantage  taken  of  his  situation, 
and  that  he  is  entitled  to  be  restored  to  the  benefit  he  has  lost 
by  the  oppressive  act  of  his  creditor. 

7.  Smith    V.    Bromley,    2    Doug. 
696u. 


191 


CHAPTER  VI. 

Agreements    in    Violation    of    Statutes. 


ARTICLE  I. 

Violations  in  General. 

Section  173.  Contracts  Made  in  Violation  of  Statute — Scalping  Contracts. 

174.  Peonage  Contracts. 

175.  Prohibition  and   Penalty. 

176.  Malum  Prohibitum  and  Malum,  in  8e. 

177.  Penalty  Imposed  for  Administrative  Purposes. 

178.  Acts  Impliedly  Prohibited. 

179.  What  Cannot  be  Done  by  Direct  Means  Cannot  be  done  by 

Indirect  Action. 

§  173.  Contracts  made  in  violation  of  statute  —  Scalping 
tickets. —  The  general  rule  of  law  is,  that  a  contract  made  in 
v^iolation  of  a  statute  is  void ;  and  that  when  a  plaintiff  cannot 
establish  his  cause  of  action  without  relying  upon  an  illegal  con- 
tract, he  cannot  recover.^  There  can  be  no  civil  right  where 
there  can  be  no  legal  remedy ;  and  there  can  be  no  legal  remedy 
for  that  which  is  itself  illegal.^  There  are  some  exceptions  to 
this  general  rule,  and  these  exceptions  are  based  upon  a  sup- 
posed intent  of  the  legislature.     The  true  test  is  that  while  as  a 

1.  Winchester  Electric  Light  Co.  N.  E.  598;  Kennedy  v.  Cochrane,  65 

V.  Veal,  143  Ind.  681,  42  N.  E.  914;  Me.  594;  Bank  v.  Owens,  2  Pet.  (U. 

Penn    v.    Bornman,    102    111.    523;  S.)    527,   539;   Ryan  v.  Potwin,  62 

Wright  V.  Gardner,  98  Ky.  454,  33  111.   App.    134;    Pangburn  v.  West- 

S.  W.  622,  35  S.  W.  116;  Alexander  lake,  36  Iowa,  546,  549;   Harris  v. 

V.  O'Donnoll,  12  Kan.  608;  Leonard  Runnels,   12  How.    (TJ.  S.)    79,  84; 

V.  Pool,  114  N.  Y.  371,  21  N.  E.  707,  Case  v.  Johnson,  91  Ind.  477. 

4  L.  R.  A.  728,  11  Am.  Rep.  667;  2.  Bank  v.  Owens,  2  Pet.  (U.  S.) 

Gunter    v.    Leckey,    30    Ala.    591;  527. 
State   V.   Wilson,   113   Ind.   501,    15 

192 


Ch.   6        AGREEMENTS  IN  VIOLATION  OF  STATUTE.         §§  173,  174 

general  rule,  a  penalty  implies  a  prohibition,  yet  the  courts  will 
always  look  to  the  language  of  the  statute,  the  subject-matter  of 
it,  the  wrong  or  evil  which  it  seeks  to  remedy  or  prevent,  and 
the  purpose  sought  to  be  accomplished  in  its  enactment ;  and  if, 
from  all  these,  it  is  manifest  that  it  was  not  intended  to  imply 
a  prohibition  or  to  render  the  prohibited  act  void,  the  courts  will 
so  hold,  and  construe  the  statute  accordingly.^  So,  statutes 
prohibiting  the  sale  of  railroad  and  steamboat  tickets  except  by 
lawfully  authorized  agents  are  constitutional.*  It  is  held,  how- 
ever, in  New  York,  that  such  statutes  are  not  constitutional." 
In  the  New  York  case  the  Appellate  Division  held  that  the  act 
was  constitutional.  On  appeal  the  judgment  was  reversed  by  a 
divided  court.  The  court  held  that  a  duly  constituted  agent  of 
one  railroad  company  had  authority  to  sell  tickets  of  other  car- 
riers. It  may  be  that  the  various  acts  of  the  States  contain  no 
provision  susceptible  of  the  construction  upon  which  the  ma- 
jority judges  of  the  Court  of  Appeals  have  based  the  conclu- 
sions. 

§  174.  Peonage  contracts. —  Peonage  means  a  system  of  com- 
pulsory labor  or  service  in  discharge  of  contracts,  debts,  or  ob- 
ligations. The  law  of  Congress  of  1867  is  violated  by  such 
compulsion.  This  act  was  aimed  more  especially  at  the  condi- 
tion of  peonage  then  existing  in  the  territory  of  New  Mexico, 
which  had  derived  this  institution  from  Mexico  and  through 

3.  Pangburn  v.  Westlake,  36  Tex.  Cr.  App.  631,  51  S.  W.  1126,  62 
Iowa,  546;  Miller  v.  Ammon,  145  S.  W.  419,  53  L.  R.  A.  349,  96  Am. 
U.  S.  421,  12  S.  Ct.  884;  Cope  v.  St.  Rep.  821  and  note;  Common- 
Rowlands,  2  Mees.  &  Wei.  149;  wealth  v.  Wilson,  14  Phil.  384; 
Aiken  v.  Blaisdell,  41  Vt.  655;  Les-  Railroad  Co.  v.  McConnell  (Tenn.), 
ter  V.  Howard,  33  Md.  558,  3  Am.  82  Fed.  Rep.  65;  State  v.  Bera- 
Rep.  211;  Buckman  v.  Bergholtz,  heim,  19  Mont.  512,  49  P.  441;  Com- 
37  N.  J.  L.  437;  Barton  v.Muir,  L.  monwealth  v.  Keary,  198  Pa.  St. 
R.  6  P.  C.  134.  500,  48  A.  472.     These  statutes  are 

4.  Fay  v.  State,  63  Ind.  552;  known  as  "Ticket  Scalping  Stat- 
State  V.  Corbet,  57  Minn.   345,   59  utes." 

N.  W.  317,  24  L.  R.  A.  498,  30  Am.  5.  People  v.  Warden,  157  N.  Y. 

St.  Rep.  234;  Burdick  v.  People,  149  116,  51  N.  E.  1006,  43  L.  R.  A.  264, 

111.  600,  36  N.  E.  952,  24  L.  R.  A.  68  Am.  St.  Rep.  763. 
152  and  note;  Jannin  v.  State,  42 

193 


§§    174,  175  CONTRACTS    IN    VIOLATION    OF    LAW.  Oh.     6 

Mexieo  from  Spain.  The  terms  of  this  act  reaches  any  system 
of  this  kind  in  the  United  States.  This  act  is  constitutional  by 
virtue  of  the  thirteenth  amendment ;  the  statute  applies  to  any 
case  of  illegal  sale,  holding  in  imprisonment,  and  labor  of  citi- 
zens to  work  out  a  debt  or  contract.^ 

§  175.  Prohibition  and  penalty. — Before  the  general  rule  can 
be  applied  in  any  case  of  a  statute  prohibiting  or  enjoining 
things  to  be  done,  with  a  prohibition  and  a  penalty,  or  a  penalty 
only  for  doing  a  thing  which  it  forbids,  the  statute  must  be  ex- 
amined as  a  whole,  to  find  out  whether  or  not  the  makers  of  it 
meant  that  a  contract  in  contravention  of  it  should  be  void,  or 
that  it  was  not  to  be  so.  It  is  true  that  a  statute,  containing  a 
prohibition  and  a  penalty,  makes  the  act  which  it  punishes  un- 
lawful, and  the  same  may  be  implied  from  a  penalty  without  a 
prohibition ;  but  it  does  not  follow  that  the  unlawfulness  of  the 
act  was  meant  by  the  legislature  to  avoid  a  contract  made  in 
contravention  of  it.  When  the  statute  is  silent,  and  contains 
nothing  from  Avhich  the  contrary  can  be  properly  inferred,  a 
contract  in  contravention  of  it  is  void.^ 

If  a  statute  prohibits  a  contract  in  the  sense  of  making  it  un- 
lawful for  any  one  to  enter  into  it,  such  a  contract,  if  made,  is 
wholly  void,  and  connot  be  enforced.  Whether  a  statute  for- 
bidding an  act  to  be  done,  or  enjoining  the  mode  of  doing  it, 
is  prohibitory,  so  as  to  make  any  contract  in  violation  of  it  ab- 
solutely void,  or  whether  it  is  directory  in  its  purpose,  and  does 
not  necessarily  invalidate  the  contract,  is  a  difficult  question. 

There  is  a  large  class  of  cases,  both  in  this  country  and  in 
England,  in  which  statutes  have  enacted,  in  substance,  that 
goods  should  only  be  sold  in  certain  measures,  or  in  a  certain 
manner,  or  after  being  inspected  and  branded  by  public  officers ; 
and  contracts  of  sale  which  do  not  meet  the  requirements  of 
such  statutes  are  void,  as  the  intention  of  the  legislature  to  make 

6.  The   Peonage  Cases,   123   Fed.       age  Repugnant  to  the  Federal  Con- 
Rep.  671.     See,  The  Peonage  Cases,       stitution,  57     Cent.  L.  Jour.  441. 
4  Columbia  L.  Review,  279;   What  1.  Harris    v.    Runnels,    12    How. 

Constitutes    a    Condition    of    Peon-        (U.  S.)    79;   Miller  v.  Ammon,   145 

U.   S.   421,   12   S.   Ct.  884. 

194 


Ch.    6  AGREEMENTS    IN    VIOLATION    OF    STATUTE.  §    175 

them  void  is  inferred."  It  lias  been  held  that  contracts  made  in 
violation  of  the  provisions  of  statutes  are  not  void,  upon  the 
ground  that  the  statutes  are  intended  merely  to  be  directory  to 
the  officers  or  persons  to  whom  they  are  addressed,  and  not  to 
the  conditions  precedent  to  the  validity  of  contracts  made  in 
reference  to  them.  Thus,  the  revised  statutes  of  the  United 
States  respecting  national  banks  provide  that  a  bank  shall  not 
lend  to  any  one  person,  corporation,  or  firm  a  sum  exceeding 
one-tenth  part  of  the  capital  stock  actually  paid  in,  and  that 
national  banks  shall  not  take  real  estate  as  collateral  security 
except  for  debts  previously  contracted ;  and  it  is  held  that  con- 
tracts made  in  contravention  of  the  statute  are  not  void.^  And 
so  where  the  officers  of  a  savings  bank  invest  its  funds  in  a  man- 
ner forbidden  by  statute,  such  illegal  action  of  the  officers  does 
not  impair  the  validity  of  the  instrument.* 

Each  statute  must  be  judged  as  a  whole,  regard  being  had  not 
only  to  its  language,  but  to  the  objects  and  purposes  for  which 
it  was  enacted.  If  the  statute  does  not  declare  a  contract  made 
in  violation  of  it  to  be  void,  and  if  it  is  not  necessary  to  hold  the 
contract  void  in  order  to  accomplish  the  purposes  of  the  statute, 
the  inference  is  that  it  was  intended  to  be  directory,  and  not 
prohibitory  of  the  contract.^  But  the  statute  is  void  if  it  vio- 
lates the  constitutional  guaranty  of  liberty.  Thus,  a  statute 
forbidding  an  employer  to  discharge  an  employe  because  he  is 
a  member  of  a  labor  organization,  is  void.® 

2.  Miller      v.      Post,      1      Allen       v.  Whitney,  103  U.  S.  99;  Reynolds 
(Mass.),  434;  Sawyer  v.  Smith,  109       v.    Bank,   112   U.   S.   405,   5    S.   Ct. 

Mass.  220;   Kleckley  v.  Leyden,  63  213. 

Ga.    215;    McConnell    v.    Kitchens,  4.  Holdeu    v.    Upton,    134    Mass. 

20  S.   Car.   430,  47  Am.  Rep.   845;  177. 

Doe   V.    Burnham,    31    N.    H.    426;  5.  Cope  v.   Rowlands,  2  Mees.  & 

Durgin  v.  Dyer,  68  Me.   143;   Hal-  W.    149;    Smith    v.    Mawhood,    12 

lett  V.  Novion,   14  Johns.    (X.  Y.)  Mees.   &  Wei.   452;    Taylor  v.   Gas 

273;    Bowditch    v.    Ins.    Co.,    141  and  Coke  Co.,  10  Exch.  293;  Euck- 

Mass.    292,    4    N.    E.    798,   55    Am.  man  v.  Bergholz,  37  N.  J.  L.  437. 

Rep.  474.  6.  Zilmer     v.     Kreutzberg,      114 

3.  Gold  Mining  Co.  v.  Banl^,   96  Wis.  530,  90  N.  W.  1098,  58  L.  R. 
U.  S.  640;   National  Bank  v.  Mat-  A.  748.  91   Am.  St.  Rep.  934. 
thews,  98  U.  S.  621;  National  Bank 

195 


§    176  CONTRACTS    IN    VIOLATION    OF    LAW.  Ch.    6 

§  176.  Malum  prohibitum  and  malum  in  se. —  It  is  asserted 
by  some  that  there  is  a  distinction  between  malum  prohibitum, 
and  malum  in  se  —  between  things  intrinsically  and  morally 
wrong,  and  things  which  are  made  so  merely  by  legislation. 
That  is,  tlie  inference  is  this:  When  an  act  is  merely  malum 
prohibitum.^  it  may  conscientiously  be  done,  provided  only  the 
party  be  willing  to  incur  the  penalty;  it  is  optional  with  the 
party  to  do  or  to  refrain  from  doing  the  act  in  question,  and 
the  alternative  is  presented  him  by  the  legislature  to  abstain 
from  the  act,  or  to  do  it  and  pay  the  penalty.  But  this  reason- 
ing is  not  correct. 

So  far  as  regards  the  effect  of  a  statute  upon  a  matter  pro- 
hibited under  a  penalty,  there  is  no  distinction  between  mala 
prohibita  and  7nala  in  se.^  Where  the  act  is  prohibited  by  the 
statute,  the  contract  is  void  at  its  inception,  and  it  is  immaterial 
whether  the  act  of  the  party  was  malum  in  se  or  merely  malum 
prohibitum.^  The  distinction  in  some  of  the  old  cases  between 
malum  in  se  and  malum  prohibituyn  has  long  since  been  repudi- 
ated both  in  this  country  and  in  England.^  Where  a  contract 
is  malum:  in  se,  thus  involving  moral  turpitude  or  violating 
some  principle  of  public  policy,  the  courts  will  in  no  case  in- 
terfere to  relieve  either  party  from  any  of  its  consequences.* 
But  where  the  contract  is  merely  malum  prohibitum,  the  court 
will  interfere  if  the  guilt  rests  chiefly  upon  one,  although  both 
have  participated  in  the  illegal  act,  as  equity  requires  it  to  the 
more  innocent  party.^  The  question  to  settle  is  whether  the 
parties  are  in  pari  delicto  as  well  as  particeps  criminis;  if  so 
the  courts  will  give  no  relief;^  if  the  parties  are  only  in  pari 
delicto  the  more  innocent  may  be  relieved ;  but  neither  will  be 
relieved  where  they  are  also  particeps  criminis? 

I.Lewis    V.    Welch,    14    N.    H.  4.  Bank  v.  Owens,  2  Pet.  (U.  S.) 

294.  539;      White     v.     Buss,     3     Cush. 

2.  Pucket   V.   Alexander,    102   N.        (Mass)    448. 

Car.  95,  8  S.  E.  767 ;  Penn  v.  Born-  5.  Bensley  v.   Bigold,  5   Barn.   & 

man,   102   111.   523;   White  v.   Buss,  Aid.  335. 

3   Cush.    (Mass.)    448.  6.  Tracy   v.    Talmage,    14    N.   Y. 

3.  Camion  v.  Brice,  3  Barn.  &  102;  Irwin  v.  Curie,  171  N.  Y.  409, 
AM.   179;   Auhert  v.  Maze,  2   Bos.  G4  N.  E.  161,  58  L.  R.  A.  830. 

&,  Pul.  371.  7.  Jaques    v.     Golightly,    2     W. 

Black,  1073. 
196 


Ch.   C        AGKEEMENTS  IN  VIOLATION  OF  STATUTE.         §§  177,  178 

§  177.  Penalty  imposed  for  administrative  purposes. — 
Where  the  object  of  the  law  is  merely  to  protect  the  revenue, 
and  not  to  protect  the  public,  the  imposition  of  a  penalty  will 
not  amount  to  a  prohibition  of  the  contract.^  The  iiriposition 
of  the  defined  penalty  shows  that  the  legislature  did  not  intend 
that  the  contract  should  be  wholly  void,  as  this  would  be  im- 
posing an  added  penalty.^  So  the  provisions  of  the  internal 
revenue  law^s  of  the  United  States,  prohibiting  persons  from 
carrying  on  the  business  of  wholesale  dealers  in  merchandise 
until  they  pay  the  special  tax  therein  provided,  do  not  invali- 
date sales  made  by  persons  who  fail  to  comply  with  the  statute, 
or  prevent  them  from  recovering  the  price  of  the  goods  sold.-^" 
So  where  a  usurious  contract  is  made,  a  penalty  being  inflicted 
for  taking  usury,  the  act  of  making  such  a  contract  is  illegal, 
but  the  contract  is  not  void. 

§  178.  Acts  impliedly  prohibited.— It  is  held  by  some  of  the 
cases  that  whenever  a  statute  imposes  a  penalty  for  any  act  or 
omission,  it  impliedly  prohibits  it.  Thus,  a  contract  for  the 
sale  of  chattels  entered  into  in  contravention  of  the  terms  and 
policy  of  the  statute,  cannot  be  enforced ;  and  it  is  immaterial 
whether  the  sale  is  expressly  prohibited  or  penalty  imposed 
therefor ;  the  imposition  of  a  penalty  in  such  case  implies  a 
prohibition.^    And  it  is  held  that  it  is  not  necessary  that  the  act 

8.  Holman  v.  Johnson,  Cowp.  10.  Lamed  v.  Andrews,  106  Muss. 
341;  Johnson  v.  Hudson,  11  East,  435,  8  Am.  Rep.  340;  Aiken  v. 
180;  Brown  v.  Duncan,  10  Barn.  &  Blaisdell,  41  Vt.  655;  Bowditch  v. 
Cr.  98;  Hodgson  v.  Temple,  5  Ins.  Co.,  141  Mass.  292,  4  N.  E.  798, 
Taunt.  181;  Wethwell  v.  Jones,  3  55  Am.  Rep.  474.  See,  also,  Man- 
Barn.  &  Aid.  221;  Earned  v.  An-  dlebaum  v.  Gregorich,  17  Xev.  87, 
drews,  106  Mass.  435,  8  Am.  Rep.  28  P.  121,  45  Am.  Rep.  433;  Rather 
346;  Bailey  v.  Harris,  12  Q.  B.  v.  Banlv,  92  Pa.  St.  393;  Johnson 
905;  Bisbee  v.  McAllen,  •  39  Minn.  v.  Hulings,  103  Pa.  St.  498,  49 
143,  39  N.  W.  299;  Aiken  v.  Blais-  Am.  Rep.   131. 

dell,    41    Vt.    655;    Smith   v.   Maw-  1.  Cundell    v.    Dawson,    4    C.    B. 

hood,   14  Mees.  &  Wei.  452;   Com-  376;     Miller     v.     Post,     1     Allen 

pare  Cope  v.  Rowlands,  2  Mees.  &  (Mass.),   434;    Libbey   v.   Downey, 

W.  149;   Territt  V.  Bartlett,  21  Vt.  5    Allen     (Mass.),    299;   Durgin    v. 

184.  Dyer,  68  Me.  143. 

9.  Merrill  v.  Mclntire,   13   Gray 
(Mass.),   157. 

197 


§    178  CONTRACTS    IN    VIOLATION    OF    LAW.  Cb.    6 

should  be  prohibited  in  express  terms,  but  that  a  prohibition  may 
be  implied  from  the  imposition  of  a  penalty,  as,  it  is  claimed,  a 
penalty  implies  a  prohibition,  though  there  are  no  prohibitory 
words  in  the  statute.^ 

The  weight  of  authority  is,  that  a  contract  founded  on  an  act 
prohibited  by  statute  is  void,  and  that  it  makes  no  difference 
whether  the  prohibition  is  expressed  or  is  to  be  implied  from 
the  imposition  of  a  penalty.  But  whether  a  prohibition  is  to 
be  implied  from  the  imposition  of  a  penalty  is  a  question  of 
legislative  intent,  to  be  ascertained  by  an  examination  of  the 
various  provisions  of  the  statute  in  question,  and  where  there 
are  any  terms  in  the  statute  which  indicate  that  the  legislature 
did  not  intend  to  avoid  a  contract  made  in  contravention  of  it, 
such  a  contract  may  be  enforced.^  And  where  the  statute  for- 
bids a  contract,  but  provides  that,  if  made,  it  shall  not  be  void, 
then  the  courts  will  enforce  it.*  The  omission  of  a  penalty,  or 
a  failure  of  the  penal  clause,  will  not  prevent  the  court  from 
giving  effect  to  an  express  prohibition;^  therefore,  the  general 
rule  that  a  marriage,  valid  where  consummated,  is  valid  every- 
where, does  not  apply,  where  the  parties,  living  in  the  same 
State,  and  subject  to  an  absolute  statutory  provision  against 
their  marriage,  on  grounds  of  good  morals  and  public  policy, 
leave  the  State  of  their  domicil,  and  enter  another  where  their 

2.  Pray    v.    Burbank,    10    N.    H.  3.  Harris    v.    Runnels,    12    How. 

377;  Law  V.  Hodgson,  11  East,  300;  (U.    S.)    79;    Niemeyer   v.    Wright, 

Kleckley    v.    Leyden,    63    Ga.    21G;  75  Va.  239,  40  Am.  Rep.  720;  Penn 

Johnston  v.  McConnell,  65  Ga.  129;  v.  Bornman,   102  111.  523;   Hunt  v. 

Dillon   V.   Allen,   46    Iowa,   299,   26  Knickerbocker,    5    Johns.     (N.    Y.) 

Am.     Rep.     145;     Woods    v.    Arm-  327;  Bensley  v.  Bignold,  5  Barn.  & 

strong,   54   Ala.    150,   25   Am.   Rep.  Aid.     335;     Griffith     v.     Wells,      3 

671  and  note;    O'Donnell  v.  Swee-  Denio    (N.  Y.),  226;    Siedenbender 

ney,  5  Ala.  468,  39  Am.  Dec.  336;  v.  Charles,  4  Serg.  &  R.   (Pa.)   150; 

Hallettv.  Novion,  14  Johns.  (N.Y.)  Lewis    v.    Welch,    14    N.    H.    294; 

273;  Doe  V.  Burnham,  31  N.  H.  426;  Springfield    Bank    v.    Merrick,     14 

Cope  V.  Rowlands,  2  Mees.  &  Wei.  Mass.  322. 

149;    Bacon   v.    Lee,    4    Iowa,   490;  4.  Lewis  v.   Bright,   4   El.   &   Bl. 

McConnell   v.   Kitchens,   20   S.   Car.  917. 

430,   47    Am.    Rep.    845;    Brown   v.  5.  Sussex  Peerage  Case,  11  Clark 

Duncan,  10  Barn.  &  Cr.  93.  &  F.  85,  148,  149. 


198 


Ch.   6        AGREEMENTS  IN  VIOLATION  OF  STATUTE.         §§  178,  179 

Marriage  is  not  prohibited,  and  are  there  married,  for  the  ex- 
press purpose  of  evading  the  laws  of  their  own  State.® 


§  179.  What  cannot  be  done  by  direct  means  cannot  be  done 
by  indirect  action. —  The  Law  will  not  permit  the  accomplish- 
ment, by  indirect  means,  of  what  it  prohibits  directly.^  l^o 
contract  between  parties  to  do  a  thing  prohibited  by  law  will  be 
enforced  by  the  courts.^  When  the  restrictive  policy  of  a  law 
alone  is  in  contemplation,  it  is  a  universal  rule  that  it  is  unlaw- 
ful to  contract  to  do  that  which  it  is  unlawful  to  do.^ 


6.  Appeal  of  Morehouse — StuU's 
Estate,  183  Pa.  St.  625,  39  A.  16, 
39  L.  R.  A.  539,  63  Am.  St.  Rep. 
76;  Brook  v.  Brook,  H.  L.  Cas.  212; 

Williams  v.  Gates,  5  Ired.  L.  (N. 
Car.)  535;  Penngar  v.  State,  87 
Tenn.  244,  10  S.  W.  305,  '2  L.  R. 
A.  703  and  note,  10  Am.  St.  Rep. 
648;   Marshall  v.  Marshall,  2  Hun 

(N.  Y.),  238;  Compare  Van  Voor- 
his  V.  Brintnal,  86  N.  Y.  18,  40  Am. 
Rep.  505 ;  Putnam  v.  Putnam,  8 
Pick.  (Mass.)  433;  Medway  v. 
Needham,  16  Mass.  157,  8  Am. 
Dec.  131  and  note. 


1.  Booth  V.  Bank,  7  CI.  &  F.  540; 
In  re  Macleay,  L.  R.  20  Eq.  186, 
189;  Wells  v.  People,  71  111.  532. 

2.  Dillon  V.  Allen,  46  Iowa,  299, 
26  Am.  Rep.  145 ;  Hathaway  v. 
Moran,  44  Me.  67;  Cook  v.  Phil- 
lip, 56  N.  Y.  310;  Cope  v.  Row- 
lands, 2  Mees.  &  Wei.  149,  2  Gale, 
231;  Bemis  v.  Becker,  1  Kans. 
226;  Edwards  County  v.  Jennings, 
89   Tex.   618,   35   S.   W.   1053. 

3.  Bank  v.  Owens,  2  Pet.  (U.  S.) 
527. 


199 


§    180  CONTEACTS    IN    VIOLATION"    OF    LAW.  Cll.    6 

ARTICLE  II. 

Violation  of  Sunday  Laws. 

Section  180.  Contracts  Made  on  Sunday  at  Common  Law. 

181.  Constitutionality  of  Sunday  Laws. 

182.  As  to  Interstate  Commerce. 

183.  Prohibited  Contracts. 

184.  Contracts  not  Prohibited  by  Statute. 

185.  Negotiations   on   Sunday — Contracts   Completed   on   Monday. 

186.  Contracts  Within  the  Statute. 

187.  Ordinary  Calling. 

188.  Work  of  Necessity. 

189.  Working  on  Sunday  to  Prevent  Loss  on  Week  Day. 

190.  Works  of  Charity. 

191.  Traveling  on  Sunday. 

192.  Ratification. 

193.  Third   Persons. 

194.  Contracts  Dated  on  Sunday. 

195.  Executed  on  Sunday. 

§  i8o.  Contracts  made  on  Sunday  at  common  law. —  The 

common  law  made  no  distinction  between  Sunday  and  any  other 
day  of  the  week.-^  The  common  law  never  considered  those  con- 
tracts as  void  which  were  made  on  Sunday.^ 

The  English  statute^  prohibits  only  work  of  one's  ordinary 
calling;  and,  hence  the  English  cases  carefully  distinguish 
between  contracts  which  are  and  are  not  of  the  "  ordinary  call- 
ing "  of  the  parties.  The  former,  if  made  on  Sunday,  are  void ; 
the  latter  not.     So,  contracts,  not  within  the  prohibition,  have 

1.  Swann  v.  Swann,  21  Fed.  Rep.  12  Mo.  App.  11;  Hellams  v.  Ab- 
299;  Said  v.  Stromberg,  55  Mo.  bercombie,  15  S.  Car.  110,  40 
App.  538.  Am.  Rep.  684;  Brown  v.  Browning, 

2.  Comyns  v.  Boyer,  Cro.  15  R.  I.  422,  7  A.  403,  2  Am.  St. 
Eliz.  485;  Rex  v.  Brotherton,  1  Rep.  908;  Richmond  v.  Moore,  107 
Strange,  702;  King  v.  Whitnash,  111.  429,  47  Am.  Rep.  445;  Eden 
7  Barn.  &  Cr.  596;  Bloxsome  v.  v.  People,  161  111.  296,  43  N.  E. 
Williams,  3  Barn.  &  Cr.  232;  1108,  32  L.  R.  A.  659,  52  Am.  St. 
Bloom  V.  Richards,  2  Ohio  St.  387,  Rep.  365. 

15  Am.  Dec.  557;   More  v.  Clymer,  3.  29  Car.  II,  ch.  7,  sec.  1. 


200 


Ch.   6        AGREEMENTS  IN  VIOKATION  OF  STATUTE.         §§  180,  181 

always  been  lield  valid  in  England.''  By  tlie  English  decisions, 
such  contracts,  when  not  within  the  prohibition  of  the  statute, 
are  not  deemed  contra  honos  mores,  or  in  any  other  way  invalid. 
The  English  statute^  has  been  generally  followed  in  this 
country,  prohibiting  work  of  one's  ordinary  calling  on  Sunday. 
But  the  observance  of  this  day  is  not  required  from  all  citizens. 
Believers  in  the  Sabbatarian  faith  and  the  Jews  are  allowed  to 
labor  in  tlieir  resijective  vocations  on  Sunday,  and  in  certain 
places  to  open  stores  and  carry  on  mechanical  trades.® 

§  i8i.  Constitutionality  of  Sunday  laws. —  Sunday  laws  are 
constitutional.  It  is  not  the  object  of  such  laws  to  compel  the 
observance  of  Sunday,  as  a  religious  institution,  because  it  is 
the  Christian  Sabbath,  to  be  kept  holy  under  the  ordinances  of 
the  Christian  religion ;  if  it  was,  it  w^ould  violate  the  provisions 
of  the  Federal  and  the  State  Constitutions.  It  would  then  vio- 
late equally  the  religious  liberty  of  the  Christian,  the  Jew  and 
the  infidel,  none  of  whom  can  be  compelled  by  law  to  comply 
with  any  merely  religious  observance,  whether  it  accords  with 
his  faith  and  conscience  or  not.  Such  is  the  general  doctrine  of 
the  courts.^ 

The  laws  make  no  reference  to  Sunday  as  a  religious  day, 
and  the  exceptions  generally  made  to  the  general  prohibition 

4.  Drury  v.  Defontaine,  1  Taunt.  913;  State  v.  Judge,  39  La.  Ann. 
131;  King  v.  Whitnash,  7  Barn.  &  132,  1  So.  437;  State  v.  O'Rouik, 
Cr.  794;  Fennell  v.  Ridder,  5  Barn.  35  Nebr.  614,  53  N.  W.  591,  17  L. 
&  Cr.  406;  Rex  v.  Brotherton,  1  R.  A.  830  and  note;  State  v.  Fer- 
Strange,  702.  nandez,  39  La.  Ann.  538,  2  So.  233; 

5.  29  Car.  II,  ch.  7,  sec.  1.  Commonwealth   v.    Has,    122    Mass. 

6.  Martin  v.  Goldstein,  39  N.  40;  Commonwealth  v.  Specht,  8 
Y.  S.  254;  Judefind  v.  State,  78  Pa.  St.  312,  49  Am.  Dec.  518;  Com- 
Md.  510,  28  A.  405,  22  L.  R.  A.  721  monwealth  v.  Nesbit,  34  Pa.  St. 
and  note.  398;    Hudson    v.    Geary,    4    R.    I. 

1.  State  V.   Powell,   58   Ohio   St.  485;    State  v.  Railroad  Co.,  15  W. 

324,    50    N.    E.    900,   41    L.    R.    A.  Va.   362,   36   Am.   Rep.   803;    Char- 

854;  Judefind  v.  State,  78  Md.  510,  leston    v.    Benjamin,    2    Strob.     (S. 

28   A.    405,    22    L.   R.    A.    721    and  Car.)    508,    49    Am.    Dec.    60S    and 

note;  State  v.  Bott,  3  La.  Ann.  663;  note;   Johns  v.   State,  78  Ind.   332, 

State  V.  Baum,  33  La.  Ann.   985;  41   Am.   Rep.   577   and  note;    Bold. 

Corporation  v.  Minden,  36  La.  Ann.  v.   State,   3   Tex.   App.   683. 

201 


§    181  CONTKACTS    IN    VIOLATION    OF    LAW.  Ch.    6 

show  that  thej  are  not  designed  to  enforce  the  Christian  idea  of 
the  Sabbath,  or  to  apply  the  rules  of  any  religious  sect  to  the 
observance  of  Sunday.  Such  statutes  are  to  be  judged  precisely 
as  if  they  had  selected  for  a  day  of  rest  any  day  of  the  week 
other  than  Sunday.  And  the  validity  of  the  statute  is  not  to  be 
questioned  because,  in  the  exercise  of  a  wise  discretion,  it  haa 
chosen  that  day  which  the  majority  of  the  citizens  of  the  State, 
under  the  sanction  of  their  religious  faith,  already  observe  as 
a  day  of  rest.^ 

It  is  essentially  a  civil  regulation,  providing  for  a  fixed  period 
of  rest  in  the  business,  the  ordinary  vocations  and  the  amuse- 
ments of  the  people.  Some  one  day  must  be  selected  for  that 
purpose,  and  even  if  the  day  thus  selected  is  chosen  because 
a  great  majority  of  the  people  celebrate  it  as  of  peculiar  sanctity, 
the  legislative  authority  to  provide  for  its  observance  is  derived 
from  its  general  authority  to  regulate  the  business  of  the  com- 
munity and  to  provide  for  its  moral  and  physical  welfare.  The 
act  imposes  upon  no  one  any  religious  ceremony  or  attendance 
upon  any  form  of  worship,  and  any  one  who  deems  another  day 
more  suitable  for  rest  or  worship,  may  devote  that  day  to  the 
religious  observance  which  he  deems  suitable  or  appropriate. 
That  one  who  conscientiously  observes  the  seventh  day  of  the 
week  may  also  be  compelled  to  abstain  from  business  of  the  kind 
expressly  forbidden  on  Sunday;  this  is  not  occasioned  by  any 
subordination  of  his  religion,  but  because  as  a  member  of  the 
community  he  must  submit  to  the  rules  which  are  made  by  law- 
ful authority  to  regulate  and  govern  the  business  of  the  people.^ 
Under  this  view,  Sunday  laws  do  not  conflict  with  constitutional 
law. 

2.  State  V.  Judge,  39  La.  Ann.  Mass.  40;  Ex  parte  Andrews,  18 
132,  1  So.  437.  Cal.    678;     Ex    parte    Newman,    9 

3.  Frolickstein  v.  Mobile,  40  Cal.  502;  State  v.  Railroad  Co.,  24 
Ala.  725;  Gabel  v.  Houston,  29  W.  Va.  783,  49  Am.  Rep.  290; 
Tex.  335;  Scales  v.  State,  47  Ark.  State  v.  Ambs,  20  Mo.  214;  Mayor 
476,  1  S.  W.  769,  58  Am.  Rep.  768  v.  Linck,  12  Lea  (Tenn.),  499; 
and  note;  Bloom  v.  Richards,  2  Hennington  v.  State,  90  Ga.  396, 
Ohio  St.  387;  Specht  v.  Common-  17  S.  E.  1009,  163  U.  S.  299,  16  S. 
wealth,  8  Pa.  St.  312,  49  Am.  Dec.  Ct.  1086.  See  Sunday  Laws-— 3 
518;     Commonwealth    v.    Has,    122  Canadian  L.  Review,  77,  215. 

202 


Ch.    6  AGREEMENTS    IN    VI0LATI0:N-    OF    STATUTE.  §    182 

§  182.  As  to  interstate  commerce. —  A  statute  making  it  un- 
lawful to  run  freight  trains  on  Sunday  is  not  in  conflict  with 
the  United  States  Constitution,  and  is  not  directed  against  in- 
terstate commerce.  Such  statute  places  the  business  of  trans- 
porting freight  in  tlie  same  category  as  all  other  secular  busi- 
ness. Such  a  law,  although  in  a  limited  degree  affecting  inter- 
state commerce,  is  not  for  that  reason  a  needless  intrusion  upon 
the  domain  of  Federal  jurisdiction,  nor  strictly  a  regulation  of 
interstate  commerce,  but  considered  in  its  own  nature  is  an 
ordinary  police  regulation  designed  to  secure  the  well-being  and 
to  promote  the  general  welfare  of  the  people  within  the  State 
by  which  it  was  established  and,  therefore,  not  invalid  by  force 
alone  of  the  constitution  of  the  United  States.^  Lottery  tickets 
are  subject  of  traffic,  and,  therefore,  of  commerce,  and  the 
regulation  of  the  carriage  of  such  tickets,  at  least  by  independ- 
ent carriers,  is  a  regulation  of  commerce  among  the  several 
States,  and  hence  Congress  may  prohibit  the  carriage  of  such 
tickets  from  State  to  State.  The  power  of  Congress  to  regulate 
interstate  commerce  comprises  the  right  to  enact  a  law  pro- 
hibiting the  citizen  from  entering  into  such  private  contracts 
which  directly  and  substantially,  and  not  merely  indirectly, 
or  remotely,  regulate  to  a  greater  or  less  degree  the  commerce 
among  the  States.  Hence,  CongTcss  may  prohibit  the  carriage 
of  lottery  tickets  from  one  State  to  another  where  they  are  to 
be  sold.^  This  rule  does  not  curtail  one's  liberty  as  recognized 
by  the  supreme  laws  of  the  land,  because  he  should  not  be  al- 
lowed to  introduce  into  commerce  among  the  States  an  element 
that  will  confessedly  be  injurious  to  public  morals.  The  liberty 
protected  by  the  Constitution  embraces  the  right  to  be  free  in 
the  enjoyment  of  one's  faculties,  and  to  enter  into  all  contracts 
that  may  be  proper.^ 

Lottery  companies  are  not  engaged  in  interstate  commerce, 
and  are,  therefore,  subject  to  control  by  the  State ;  lottery  tick- 

1.  Hennington  v.  Georgia,  163  321,  23  S.  Ct.  321,  26  Nat.  Cor. 
U.  S.  299,   16  S.  Ct.   1086.  Rep.  76. 

2.  Champion  v.  Ames,  188  U.  S.  3.  Allgeyer  v.  Louisiana,  165  U. 

S.    578,    17    S.    Ct.    427. 

203 


§    182  CONTKACTS    IN    VIOLATION    OF    LAW.  Ch.    6 

ets  when  sent  beyond  the  State  are  subjects  of  interstate  com- 
merce and,  therefore,  within  the  control  of  commerce.  And 
transportation  for  others  as  an  independent  business,  is  com- 
merce, irrespective  of  the  purpose  to  sell  or  retain  the  goods 
which  the  owner  may  entertain.*  Yet  a  party  who  merely  ships 
goods  subject  to  interstate  commerce  does  not  thereby  neces- 
sarily become  engaged  in  interstate  commerce.^  But  an  agent, 
engaged  in  soliciting,  not  selling,  passage  on  an  interstate  road 
in  another  State,  is  engaged  in  interstate  commerce.^  Cab 
service  contracted  for  by  railroad  companies  in  transporting 
passengers  from  one  station  to  another,  may  not  be  interstate 
commerce.  If  the  cab  service  is  separately  contracted  for, 
though  the  commerce  clause  would  cover  the  entire  journey 
where  there  is  one  through  contract,  yet  where  there  are  sep- 
arate contracts,  some  to  be  performed  entirely  within  the  State 
and  some  involving  the  crossing  of  State  lines,  this  clause  ex- 
tends only  to  the  latter.  So  where  the  Pennsylvania  railroad 
had  established  a  cab  service  in  ISTew  York  City  for  the  sole  use 
of  passengers  in  getting  to  and  from  its  ferry  station  before  or 
after  its  passage  across  New  Jersey  line,  this  service  was  not 
interstate  commerce.^  But  such  service  could  be  included  in 
interstate  commerce  by  selling  through  tickets,  with  a  coupon 
to  special  points  within  New  York  City,  making  the  cab  service 
a  part  of  one  through  contract.  Of  course,  a  party  is  not  an 
interstate  passenger  merely  because  he  has  a  through  ticket, 
for  it  is  necessary,  to  accomplish  this,  that  he  engages  in  one 
through  trip.  Thus,  a  passenger  having  a  ticket  from  St.  Louis 
to  Chicago,  who  exercises  a  privilege  of  stopping  off  at  Bloom- 
ington,  could  not  be  said  to  be  an  interstate  passenger  when 
subsequently  resuming  his  journey  between  Bloomington  and 
Chicago.  But  the  mere  fact  of  a  change  of  vehicle  will  not 
prevent  a  cab  service  between  stations  from  being  within  the 

4.  Hanley    v.    Kansas    City,    etc.  6.  McCall   v.    California,    136   U. 
R.  R.,  187  U.  S.  67,  23  S.  Ct.  314.  S.    104,   10  S.  Ct.  S81. 

5.  Kidd  V.  Pearson,  128  U.  S.  1,  7.  New  York   ex   rel.   Pennsylva- 
9  S.  Ct.  6.  nia  R.  R.  Co.  v.  Knox,   192  U.  S. 

21. 


204: 


Ch.    6         AGREEMENTS   IN    VIOLATION    OF   STATUTE.         §§  182-184 

term  of  interstate  commerce.^  But  where  there  are  several 
contracts,  some  to  be  performed  within  the  State  and  others 
without,  the  interstate  commerce  clause  extends  only  to  those 
extending  across  State  lines.^ 

§  183.  Prohibited  contracts. —  The  doctrine  that  contracts 
made  on  Sunday  are  void  depends  alone  upon  statutory  enact- 
ments, but  the  statutes  vary  in  the  several  States.  Where  the 
statute  expressly  prohibits  the  execution  of  contracts  on  Sun- 
day, all  contracts  made  on  that  day  are  absolutely  void,  and 
incapable  of  ratification,  any  dealings  between  the  parties  upon 
the  basis  of  such  contracts  will,  so  far  as  completed,  be  treated  as 
the  voluntary  acts  of  the  parties  which  cannot  be  disturbed,  and 
so  far  as  not  completed,  must  be  dealt  with  as  if  no  contract 
had  ever  been  made.^" 

§  184.  Contracts  not  prohibited  by  statute. — While  contracts 
growing  out  of  the  violation  of  statutes  are  void  and  will  not  be 
enforced  by  the  courts,  other  business  contracts  are  left  as  at 
common  law,  and  as  the  common  law  makes  no  distinction  be- 
tween Sunday  and  any  other  day,  as  to  the  making  of  contracts, 
and  all  other  acts,  not  of  a  judicial  nature,  contracts  other  than 
those  prohibited  by  statute  are  valid  though  made  on  Sunday.^^ 

8.  Rhodes  v.  Iowa,  170  U.  S.  Merriam  v.  Stearns,  10  Cush. 
412,   18  S.  Ct.   664.  (Mass.)    257;    Slade   v.   Arnold,  14 

9.  Kew  York  ex  rel.  Pennsylva-  B.  Mon.  (Ky.)  287;  Morgan  v. 
nia  R.  R.  Co.  v.  Knox,  192  U.  S.  Bailey,  59  Ga.  683;  Towle  v.  Lar- 
21.  rabee,  26  Me.  464;  Lyon  v.  Strong, 

10.  Gennett  v.  Wuestner,  53  N.  6  Vt.  219;  Smith  v.  Railroad  Co., 
J.  Eq.  302,  31  A.  609;  Burns  v.  83  Wis.  271,  50  N.  W.  497,  53  N. 
Moore,  76  Ala.  339,  52  Am.  Rep.  W.  555;  Nibert  v.  Baghurst,  47 
332;  Watts  v.  Van  Kess,  1  Hill  (N.  N.  J.  Eq.  201,  20  A.  252;  Whit- 
Y.),  76  Calhoun  v.  Phillips,  87  more  v.  Montgomery,  165  Pa.  St, 
Ga.  482,  13  S.  E.  59"3;  Barnhard  v.  253,   30  A.    1016. 

Lupping,  32  Mo.  341;  Pike  v.  King,  11.  Roberts  v.   Barnes,    127   Mo. 

16    Iowa,    49;    Clough    v    Goggins,  405,  30  S.  W.  113,  48  Am.  St.  Rep. 

40    Iowa,    325;    Love   v.    Wells,   25  640;    Kaufman    v.    Hamm,    30    Mo. 

Ind  503,  87  Am.  Dec.  375;   Pattee  387;  More  v.  Clymer,  12  Mo.  App. 

V.    Greely,    13    Met.     (Mass.)    284;  11;    Glover    v.    Cheatham,    19    Mo. 

205 


§§    184,  185  CONTRACTS    IN    VIOLATION    OF    LAW,  Ch.    6 

The  established  doctrine  is  that  the  law  will  not  lend  its  aid 
to  enforce  a  contract  made  in  violation  of  a  statute,  nor  set 
aside  snch  a  contract  when  it  has  been  fully  executed  by  the 
parties. ^^  The  entering  of  judgment  by  confession  on  a  judg- 
ment note  does  not  make  the  contract  to  pay,  of  which  the  note 
is  evidence,  an  executed  contract.  The  agreement  for  entering 
judgment  only  is  executed. ^^ 

§  185.  Negotiations  on  Sunday — Contracts  completed  on 
Monday. —  A  contract  may  be  good  though  the  negotiations 
were  had  on  Sunday,  but  was  completed  on  Monday.  Hence, 
a  policy  of  insurance  dated  and  delivered  on  Monday  is  not  a 
Sunday  contract,  although  the  property  was  examined  on  Sun- 
day and  the  terms  established.^ 

The  date  of  a  written  contract  within  the  meaning  of  the 
statutes  is  not  necessarily  the  day  of  its  delivery.  It  can  have 
no  efficiency  or  binding  force  until  the  act  of  delivery  is  per- 
formed, and  if  not  delivered  until  Monday  or  other  secular 
day,  it  is  valid.^ 

So  a  note  and  trust  deed  executed  on  Sunday  but  not  de- 
livered until  Monday  are  valid.^    So  a  promissory  note  executed 

App.  656  J  Bloom  v.  Richards,  2  N.  W.  851;  Taylor  v.  Young,  61. 
Ohio  St.  387;  Boynton  v.  Page,  13  Wis.  314,  21  N.  408;  Tyler  v.  Wad- 
Wend.  (N.  Y.)  425;  Johnson  v.  dington,  58  Conn.  375,  20  A.  335; 
Brown,  13  Kans.  529;  Horacek  v.  McKinnes  v.  Estes,  81  Iowa,  749, 
Keebler,  5  Nebr.  355 ;  Hellams  v.  46  N.  W.  987 ;  Bradley  v.  Rea,  103 
Abbercombie,  15  S.  Car.  110,  40  Mass.  188,  4  Am.  Rep.  524;  Bryan 
Am.  Rep.  684;  Moore  v.  Murdock,  v.  Booze,  55  Ga.  438;  Gibbs,  etc. 
26   Cal.   514.  Manuf.   Co.  v.   Brucker,    111   U.   S. 

12.  Whitmire  v.  Montgomery,  165  597,  4  S.  Ct.  572. 

Pa.    St.   253,   30   A.    1016.  2.  King   v.    Fleming,   72    111.   21, 

13.  Whitmire  V.  Montgomery,  165  22  Am.  Rep.  131;  Butler  v.  Lee, 
Pa.    St.   253,   30   A.    1016.  11    Ala.    885,    46    Am.    Dec.    250; 

1.  Wooliver     v.     Ins.     Co.,     104  Clough  v.  Davis,  9  N.  H.  500;  Burns 

Mich.  132,  62  N.  W.  162.  See,  also,  v.  Moore,  76  Ala.  339,  52  Am.  Rep. 

Lovejoy  v.  Whipple,  18  Vt.  379,  46  332;  Uhler  v.  Applegate,  26  Pa.  St. 

Am.  Dec.  157;  King  v.  Fleming,  72  140;    Stackpole  v.   Symonds,  23   N. 

111.   21,   22   Am.   Rep.   131^    Fritsch  H.    229;    Mosely    v.    Vanhooser,    6 

V.   Heislem,   40   Mo.   556;    Evert   v.  Lea   (Tenn.),  286,  40  Am.  Rep.  37. 

Kleimenhagen,    6    S.    Dak.    221,    60  3.  Roberts    v.    Barnes,    127    Mo. 

206 


Cll.    6        AGREEMENTS   IN   VIOLATION   OK   STATUTE.         §§  185,  186 

on  Snndav  is  not  on  that  account  void/  provided  it  is  delivered 
on  Monday.''  And  a  sale  of  goods  negotiated  on  Sunday,  but 
delivered  on  a  secnlar  day  is  valid,^  bnt  if  delivered  on  Sunday 
and  the  price  paid  on  the  following  Monday,  the  sale  is  voidJ 
And  a  Sunday  authorization  to  deliver  a  contract  made  on 
that  day,  on  the  following  Monday,  is  void.^  But  in  Michigan 
the  mere  delivery  of  a  note  executed  on  a  secular  day  does  not 
avoid  the  note.® 

§  1 86.  Contracts  within  the  statute  —  Return  of  considera- 
tion.—  A  contract  which  requires  the  doing  of  an  act  prohibited 
by  law  is  void.  There  is  a  difference  in  the  decisions  on  the 
question  whether  a  contract,  void  merely  because  it  was  made 
on  Sunday,  may  be  ratified  on  a  secular  day,  so  as  to  become 
valid;  but  there  is  no  conflict  of  decisions  on  the  proposition 
that  a  contract,  void  because  it  stipulates  for  doing  what  the 
law  prohibits,  is  incapable  of  being  ratified.  Thus,  in  Min- 
nesota, the  issuing,  publishing,  and  circulating  a  newspaper  on 
Sunday  is  unlawful.^ 

When  the  contract  is  void  because  made  on  Sunday,  the  pay- 
ment of  money  or  the  performance  of  any  service  cannot  be  en- 
forced as  between  the  parties.  Hence,  the  endorsement  as  well 
as  making  and  delivery  of  a  promissory  note,  is  an  act  within 
the  statute  prohibiting  secnlar  business  on  Sunday.^     An  en- 

405,  30  S.  W.  113,  48  Am.  St.  Rep.  (Mass.),  543;   Hilton  v.  Houghton, 

640;    Kaufman   v.    Hamm,    30   Mo.  35    Me.    143;    Lovejoy   v.    Whipple, 

387.     See,  also,  Foster  v.  Woolen,  18  Vt.  379,  46  Am.  Dec.  157. 

67   Miss.   540,  7   So.   501;   Compare  6.  Bar.ks  v.  Werts,   13  Ind.  203. 

Hanchett  v.  Jordan,  43  Minn.   149,  7.  Grant   v.    McGrath,    56    Conn. 

45  N.  W.  617.  333,  15  A.  370. 

4.  More  v.  Clymer,   12  Mo.  App.  8.  Davis  v.  Barger,  57  Ind.  54. 
11;    Glover    v.    Cheatham,    19    Mo.  9.    Steere      v.      Trebilcock,      108 
App.  656.  Mich.  464,  66  N.   W.  342. 

5.  Beman  v.  Wessels,  53  Mich.  1.  Hand  v.  Pub.  Co.,  41  Minn. 
549,  19  N.  179;  Wilson  v.  Winter,  188,  42  N.  W.  872.  See,  also, 
6  Fed.  Rep.  16;  Bell  v.  Mahin,  69  Smith  v.  Wilcox,  24  N.  Y.  353,  82 
Iowa,  408,  29   N.   W.  331;    Schwab  Am.    Dec.    302. 

V.   Rigby,   38   Minn.   395,  38  N.  W.  2.  Benson  v.  Drake,  55  Me.  555. 

101;     Hill     v.     Dunham,     7     Gray 

20Y 


§§    186,  187  CONTEACTS    IN    VIOLATION    OF    LAW.  Ch.    6 

dorsement  creates  a  new  contract;  it  affects  the  liability  of  the 
maker  as  well  as  the  contract  to  which  it  is  subsidiary.^  A 
notice  to  a  tenant  that  after  the  expiration  of  his  existing  con- 
tract, he  will  be  charged  an  increase  of  rent,  is  of  no  avail,  if 
such  notice  is  given  on  Sunday,  and  the  tenant  simply  remains 
in  possession  after  his  term,  because  this  does  not  raise  any  con- 
tract to  pay  such  increased  rent.*  In  Missouri  athletic  sports 
are  not  prohibited.^ 

A  bond  void  because  executed  on  Sunday  may  still  be  used 
in  evidence  as  an  admission  of  liability.®  And  so  an  acknowl- 
edgment or  new  promise  made  on  Sunday  may  be  used  in  evi- 
dence for  the  purpose  of  removing  the  bar  of  the  statute  of 
limitations.^ 

Selling  tickets  to  theatre  for  performance,  on  Sunday,  is 
laboring  on  Sunday  and  is  prohibited.^  In  Maine  a  party  re- 
scinding Sunday  contract  must  return  consideration.® 

§  187.  Ordinary  calling. —  In  some  of  the  States  the  statute 
prohibits  persons  from  doing  any  work,  business,  or  labor  "of 
his  ordinary  calling,"  Under  this  statute  a  party  may  contract 
to  labor  or  do  work  not  in  his  ordinary  calling,  and  the  contract 
will  be  valid. -"^  And  so  making  a  mortgage  may  be  outside  of  the 
party's  ordinary  calling,^^  or  a  promissory  note.'^^  Such  statutes  do 

3.  First  Nat.  Bank  v.  Kingsley,  Bank  v.  Kingsley,  84  Me.  Ill,  24 
84  Me.  Ill,  24  A.  794.  A.    794;     Wheelden    v.    Lyford,    84 

4.  Cannon  v.  Ryan,  49  N.  J.  Eq.       Me.   114,  24  A.   793. 

314,  23  A.  285.  10.  Drury     v.     Defountaine,      1 

5.  St.  Louis  Agricultural,  etc.  Taunt.  131;  Merritt  v.  Earle,  31 
Asso.  V.  Delano,  108  Mo.  217,  18  S.  Barb.  (N.  Y.)  38;  Moore  v.  Mur- 
W.    101.  dock,    26    Cal.    514;    Mills   v.    Wil- 

6.  Lea  v.  Hopkins,  7  Pa.  St.  492.  liams,    16    S.    Car.    593;    Kaufman 

7.  Thomas  v.  Hunter,  29  Md.  v.  Hamm,  30  Mo.  387;  Allen  v. 
406;  Compare  Baumgardner  v.  Gardiner,  7  R.  I.  22;  Ames  v. 
Taylor,  28  Ala.  687.  Kyle,  2  Yerg.    (Tenn.)    31,  24  Am. 

8.  Quarles  v.  State,  55  Ark.  10,  Dec.  463. 

17  S.  W.  269,  14  L.  R.  A.  192  and  11.  Hellams  v.  ABljercrombie,   13 

note.  S.  Car.  110,  40  Am.  Rep.  684. 

9.  Berry  v.  Clary,  77  Me.  482,  12.  Sanders  v.  Johnson,  29  Ga. 
1  A.  360;   Wentworth  v.  Woodside,  526. 

79   Me.    156,  8  A.   763;    First  Nat. 

208 


Cll.    ()         AGREEMENTS    IN    VIOLATION   OF  STATUTE.         §§  187,  188 

not  apply  to  all  persons,  but  to  such  only  as  have  some  ordinary 
calling;  but  every  species  of  labor,  business,  or  work,  whether 
public  or  private,  in  the  ordinary  calling  of  a  tradesman,  arti- 
ficer, workman,  laborer,  or  other  person,  is  within  the  prohibi- 
tion of  the  statute.^"  And  so  a  release  by  a  creditor  to  an  assignee 
under  a  voluntary  assignment,  and  delivered  on  Sunday  is  not 
void,  not  being  labor,  business,  or  work  of  the  ordinary  calling 
of  either  of  the  parties  to  it."  Where  the  statute  prohibits  the 
exposure  of  merchandise  for  sale  on  Sunday,  it  extends  to  public 
sales  only,  and  not  to  private  sales. ^^  If  the  statute  requires  busi- 
ness houses  to  be  closed  on  Sunday,  the  command  must  be 
obeyed.  ^^ 

§  i88.  Work  of  necessity. —  The  word  necessity  as  used  in 
the  various  statutes,  is  not  susceptible  of  an  accurate  and  en- 
tirely comprehensive  definition.  Each  case  must  be  decided  ac- 
cording to  the  circumstances,  and  it  is,  therefore,  more  a  ques- 
tion of  fact  than  of  law  whether  the  labor  done  in  a  particular 
case  is  to  be  deemed  of  necessity  or  not.  An  absolute  and  phy- 
sical necessity  is  not  meant  or  required.^  Work,  to  prevent  a 
great  waste  of  property,  has  always  been  held  to  be  within  the 
exception  of  such  statutes.  The  necessity  for  the  work  to  be 
done  must  be  real  and  urgent,  and  must  not  have  been  the  re- 
sult of  negligence  or  indolence  on  the  part  of  the  person  doing 
the  labor.^  Works  of  necessity  are  not  limited  to  the  preserva- 
tion of  life,  health,  or  property  from  impending  danger.  The 
necessity  may  grow  out  of,  or  be  incident  to,  the  general  course  of 
business,  or  even  be  an  exigency  of  a  particular  trade  or  business, 
and  yet  be  within  the  exemption  of  the  statute.  Hence,  the  dan- 
ger of  navigation  being  closed  may  make  it  lawful  to  load  a  ves- 

13.  Smith  V.  Sparrow,  4  Bing.  84;  16.  State  v.  Gelpi,  48  La.  Ann. 
Bloxsome   v.    Williams,    3    Barn.   &       520,  19  So.  755. 

Cr.  232.  1.  Johnson  v.  People,  42  111.  App. 

14.  Allen  v.  Gardiner,  7  R.  I.  22.        594;  Shipley  v.  State,  61  Ark.  216, 

15.  Boynton  v.   Page,   13   Wend.        32  S.  W.  489,  33  S.  W.  107. 

(N.  Y.)  425;  Batsford  v.  Every,  44  2.  Parmalee  v.   Wilks,   22   Barb. 

Barb.    (N.  Y.)    618.  (N.  Y.)   539;  Whitcomb  v.  Oilman, 

35  Vt.   297. 

209 


§  188 


CONTRACTS    IN    VIOLATION    OF    LAW. 


Oh.  6 


sel  on  Sunday,  if  there  is  no  other  time  to  do  so,^  The  sailing  of 
vessels  engaged  in  commerce,  and  even  their  lading  and  unlad- 
ing, are  classed  among  works  of  necessity  which  are  excepted 
from  the  operation  of  such  statute.  And  this  is  confirmed  by 
the  usage  of  all  nations,  so  far  at  least  as  it  concerns  commencing 
a  voyage  on  Sunday.*  And  running  passenger  trains  is  a  work  of 
necessity  f  and  so  is  running  excursion  trains.®  But  it  is  said 
that  running  a  freight  train  is  not  a  work  of  necessity,^  however, 
this  may  be  doubted.^ 

Under  some  of  the  statutes  the  work  of  a  barber  is  a  neces- 
sity.^ The  following  are  works  of  necessity :  Repairing  defects 
in  a  highway;^"  reaping  a  field  of  grain ;^^  shoeing  horse  used 
in  carrying  mail;^^  telegram  from  husband  to  wife  explaining 
his  absence  ;^^  telegram  informing  child  of  his  father's  death ;" 
telegram  to  physician  ;^^  repairing  railroad  tracks,^^  giving  a 
bail  bond  ;^^  contract  of  indemnity  from  an  absconding  debtor  ;^* 
and  whatever  must  be  done  to  preserve  life  and  health.  ^^ 


3.  McGatrick  v.  Wasson,  4  Ohio 
St.  566. 

4.  Philadelphia",  etc.  R.  R.  Co.  v. 
Tow  Boat  Co.,  23  How.  (U.  S.) 
209. 

5.  Commonwealth  v.  Railroad 
Co.,  80  Ky.  291,  44  Am.  Rep.  475. 

6.  Louisville,  etc.  R.  R.  Co.  v. 
Commonwealth,  30  S.  W.  878,  17 
Ky.  L.  J.  223. 

7.  Heard  v.  State,  92  Ga.  477,  17 
S.  E.  857. 

8.  Philadelphia,  etc.  R.  R.  Co. 
V.  Lehman,  56  Md.  209. 

9.  State  V.  Krech,  10  Wash.  166, 
38  P.  1001;  People  v.  Havnor,  149 
N.  Y.  195,  43  N.  E.  541,  31  L.  R. 
A.  689,  52  Am.  St.  Rep.  707;  Un- 
gericht  v.  State,  119  Ind.  379;  21 
N.  E.  1082;  Stone  v.  Graves,  145 
Mass.  353,  13  N.  E.  906,  12  Am. 
St.  Rep.  419;  Compare  Phillips  v. 
Innis,  4  CI.  &  F.  234;  Eden  v. 
People,  161  111.  296,  43  N.  E.  1108, 


32   L.   R.  A.  659,  52  Am.   St.  Rep. 
365. 

10.  Flagg  v.  Inhabitants,  4 
Cush.  (Mass.)  243. 

11.  Johnson  v.  People,  42  111. 
App.   594. 

12.  Nelson  v.  State,  25  Tex. 
App.   599,  8   S.  W.  927. 

13.  Burnett  v.  Telegraph  Co.,  39 
Mo.  App.  599. 

14.  Western  Union  Telegraph 
Co.  v.  Wilson,  93  Ala.  32,  9  So.  414, 
70   Am.   Rep.   523. 

15.  Western  Union  Tel.  Co.  v. 
Griffin,  1  Ind.  App.  46,  27  N.  E.  113. 

16.  Yonoski  v.  State,  79  Ina. 
393,  41  Am.  Rep.  614. 

17.  Hammons  v.  State,  59  Ala. 
164,  31  Am.  Rep.  13  and  note. 

18.  Hooper  v.  Edwards.  18  Ala. 
280. 

19.  Aldrich  v.  Blackstone,  128 
Mass.  148 ;  Smith  v.  Watson,  14 
Vt.  332;  Stewart  v.  Davis.  31  Ark. 


210 


Ch.   6        AGREEMENTS  IN   VIOLATION  OF  STATUTE.         §§  188,  189 

But  a  telegram  respecting  ordinary  business  is  not  a  work 
of  charity  f^  sale  of  tobacco  is  not  a  necessity  f^  nor  gathering 
seaweed.^^ 

In  Illinois/^  Missouri,^*  and  California^^  the  law  is  held  un- 
constitutional which  makes  it  unlawful  for  barbers  to  do  busi- 
ness on  Sunday.  But  in  New  York  such  law  is  upheld  as  a 
police  power.^® 

§  189.  Working  on  Sunday  to  prevent  loss  on  week  day. — 
Doing  work  on  Sunday  in  order  to  prevent  loss  on  a  week  day, 
is  not  a  work  of  necessity.  Thus,  the  clearing  out  of  a  wheel-pit 
on  Sunday,  for  the  purpose  of  preventing  the  stoppage  on  a 
week  day,  of  mills  which  employ  many  hands,  is  not  a  work  of 
necessity  or  charity.^^  Where  the  only  reason  for  doing  the  work 
on  Sunday,  is  because  the  party  is  doing  a  large  business,  em- 
ploying many  hands,  and  the  work  would  obviate  the  necessity 
of  stopping  the  machinery  on  a  week  day,  the  statutory  pro- 
hibition is  violated  and  it  is  not  a  work  of  necessity. ^^  This 
does  not  make  it  a  work  of  necessity  or  charity.^^ 

518,    25    Am.    Rep.    576;    Philadel-  19;   State  v.  Krech,  10  Wash.  166, 

phia,  etc.,  R.  R.  Co.  v.  Lehman,  56  38  P.  1001;  Hugerecht  c.  State,  119 

Md.  209,  226,  40  Am.  Rep.  415  and  Ind.    379,   21    N.   E.    1082,    12   Am. 

note.  St.  Rep.  419;   Stone  v.  Graves,  145 

20.  Western    Union    Tel.    Co.    v.  Mass.  353,  13  N.  E.  906. 

Yopst,   118   Ind.  48,  20  N.  E.  222,  27.  McGrath  v.  Merwin,  112  Mass. 

3  L.  R.  A.  224  and  note.  467,   17   Am.  Rep.    119.     See,  also, 

21.  State  V.  Ohmer,  34  Mo.  App.  Commonwealth  v.  Sampson,  97 
115.  Mass.   407;    Commonwealth  v.  Jos- 

22.  Commonwealtli  v.  Sampson,  selyn,  97  Mass.  411;  Hamilt>on  v. 
97   Mass.   407.  Austin,  62   N.   H.   575,   13  Am.   St. 

23.  Eden  v.  People,  161  111.  296,  Rep.  007;  Compare  Hennersdorf 
43  N.  E.  1108,  32  L.  R.  A.  659,  52  v.  State,  25  Tex.  App.  597,  8  S.  W. 
Am.   St.   Rep.   365.  926. 

24.  State  v.  Granneman,  132  28.  Williams  v.  Hastings,  58  N". 
Mo.   326,  33  S.  W.  784.  H.  373;  Hamilton  v.  Austin,  62  N. 

25.  Ex   parte  Jentzsch,   112  Cal.  H.  575. 

468.  44  P.  803,  32  L.  R.  A.  664.  29.  Commonwealth    v.    Sampson, 

26.  People  v.  Havnor,  149  N.  Y.  97  Mass.  407;  Commonwealth  v. 
195,  43  N.  E.  541,  31  L.  R.  A.  689,  Josselyn,  97  Mass.  411;  McGrath 
52  Am.  St.  Rep.  707.  See,  also,  v.  Merwin,  112  Mass.  467,  17  Am. 
People  V.  Buttling,  35  N.  Y.  Supp.  Rep.  119. 

211 


g§    190-192  CONTKACTS    IN    VIOLATION    OF    LAW.  Oil.    6 

§  190.  Works  of  charity. —  If  work  is  done  in  the  cause  of 
charity  it  comes  within  the  exception.^''  Thus,  the  subscription 
to  a  church  made  on  Sunday  to  liquidate  the  indebtedness  on  a 
church  contracted  in  the  erection  of  a  building  to  be  used  as  a 
place  of  worship  is  not  labor,  but  is  a  work  of  charity,  and  is 
valid  and  binding. ^^  The  purpose  for  which  it  was  taken  falls 
witliin  the  definition  placed  upon  the  word  charity  by  the 
courts.^^ 

§  191.  Traveling  on  Sunday. —  Some  statutes  prohibit  travel 
on  Sunday,  except  for  necessity  or  charity.  But  all  traveling 
on  Sunday  is  not  unlawful.  One  may  lawfully  travel  on  Sun- 
day for  exercise  in  the  open  air.^^  So  one  may  go  after  a  domes- 
tic and  bring  her  home  on  Sunday,  as  such  is  a  work  of  neces- 
sity.^* Hiring  a  carriage  on  Sunday  is  illegal  f^  but  traveling  on 
Sunday  may  be  justified  on  the  ground  of  necessity  or  as  a  deed 
of  charity.^*^  This  subject  does  not  come  directly  under  contracts 
and  cannot  be  further  treated. 

§  192.  Ratification. —  Many  courts  hold  that  a  contract  void 
because  made  on  Sunday,  may  be  ratified  on  a  secular  day ;  that 
contracts  on  Sunday  are  distinguished  from'  other  illegal  con- 
tracts to  secure  an  immoral  end,  or  for  an  immoral  considera- 
tion,— being  illegal  only  as  to  time,  not  tainted  with  any  general 
corruption,  they  may  be  affirmed  afterwards.  If  the  party  seek- 
ing redress  has  received  anything  he  must  restore  it.  If  he  de- 
clines restitution  or  compensation,  this  affirms  the  contract.'^ 

30.  Stewart  V.  Davis,  31  Ark.  518,  34.  Cro-sman  v.  Lynn,  121  Mass. 
25  Am.  Rep.  576.  301. 

31.  Bryan  v.  Watson,  127  Ind.  35.  Tillock  v.  Webb,  56  Me.  100; 
42,  26  N.  E.  637,  11  L.  R.  A.  63.  Compare  Buck  v.  Biddeford,  82  Me. 

32.  Doyle  v.  Lynn,  118  Mass.  195,  433,  19  A.  912. 

19  Am.   Rep.   431;    Allen  v.   Duffie,  36.  Buck  v.  Biddeford,  82  Me.  433, 

43  Mich.  1,  4  N.  427,  38  Am.  Rep.  19    A.    912.     See,    also,    Horton    v. 

159   and  note;    Dale   v.   Knepp,    98  Tramway  Co.,  66  Conn.  272,  33  A. 

Pa.  St.  389,  42  Am.  Rep.  624.  914. 

33.  OConnell  V.  Lewiston,  65  Me.  I.Adams  v.  Gay,  19  Vt.  358; 
34.                                         "  Sargeant  v.  Butts,  21  Vt.  99;  Sum- 


212 


Ch.    6  AGRJEOiMEWTS  llSi  VIOLATION  OF  STATUTE.  §    192 

But  the  better  rule  is  that  a  contract  made  on  Sunday  in  vio- 
lation of  a  statute  is  absolutely  void,  and  no  subsequent  rati- 
fication will  sustain  an  action  upon  it.'  Such  a  contract  has  no 
legal  force  or  obligation.  This  illegal  contract  cannot  be  rati- 
fied, because  its  want  of  validity  does  not  depend  in  any  degree 
upon  the  party's  choice.  The  law  annuls,  it,  and  there  can  be 
no  subject  of  ratification.  The  party  might  make  a  new  con- 
tract ;  but  any  arrangement  or  agreement  between  the  parties  on 
any  secular  day,  whether  direct  or  express,  or  implied  from  their 
dealings  with  each  other's  property,  would  be  a  new  and  inde- 
pendent transaction.  It  is  not  accurate  to  speak  of  ratification 
by  a  party  of  something  which  the  law  forbids.,  and  which  is 
made  void,  not  from  any  want  of  his  full  consent,  but  in  spite 
of  it.^  Ratification  is  to  impart  validity  to  an  original  agree- 
ment. Such  act  creates  no  new  obligation ;  it  merely  extends  the 
continuance  of,  or  legalizes,  one  already  in  existence.  The 
maxim  of  the  law  is:  "Omnis  ratihabitio  retro  trahitur,  et  man- 
dato  priori  aequiparatur  " — every  subsequent  ratification  has  a 
retrospective  effect,  and  is  equivalent  to  a  prior  command. 
Hence,  there  can  be  no  such  thing  in  law,  strictly  speaking,  as  a 

ner  v.  Jones,  24  Vt.  317;  Banks  v.  (Mass.),  209;  Bradley  v.  Kea,  14 
Werts,  13  Ind.  203;  Sayles  v.  Well-  Allen  (Mass.),  20;  Meriwether  v. 
man,  10  R.  I.  465;  Haacke  v.  Lit-  Smith,  44  Ga.  541;  Butler  v.  Lee, 
erary  Club,  76  Md.  429,  25  A.  422;  11  Ala.  885,  46  Am.  Dec.  230; 
Hopkins  v.  Stefan,  77  Wis.  45,  45  Ramey  v.  Capps,  22  Ala.  288;  Al- 
N.  W.  676;  Evansville  v.  Morris,  87  len  v.  Deming,  14  N.  H.  133,  40  Am. 
Ind.  209,  14  Am.  Rep.  763;  Kuhns  Dec.  170;  Winfield  v.  Dodge,  45 
V.  Gates,  92  Ind.  66;  Harrison  v.  Mich.  355,  7  N.  966,  40  Am.  Rep. 
Colton,  31  Iowa,  16;  Tucker  v.  476;  Grant  v.  McGrath,  56  Conn. 
West,  29  Ark.  386;  Smith  v.  Case,  333,  15  A.  370;  Plaisted  v.  Palmer, 
2  Oreg.  190;  Wilson  v.  Milligan,  63  Me.  576;  Kountz  v.  Price,  40 
75  Mo.  41 ;  Russell  v.  Murdock,  79  Miss.  341 ;  Compare  Winehell  v. 
Iowa,  101,  44  N.  W.  237,  18  Am.  St.  Carey,  115  Mass.  560,  15  Am.  Rep. 
Rep.  348;  Melchoir  v.  McCarty,  31  151;  Gennert  v.  Wuestner,  53  N.  J. 
Wis.  256,  11  Am.  Rep.  605;  Camp-  Eq.  302,  31  A.  609;  Nibert  v.  Bog- 
bell  V.  Young,  9  Bush.  (Ky.),  245;  hurst,  47  N.  J.  Eq.  201,  20  A.  252; 
Van  Hoven  v.  Irish,  10  Fed.  Rep.  Ryno  v.  Darby,  20  N.  J.  Eq.  231; 
13.  Reeves  v.  Butcher,  31  N.  J.  L.  225; 
2.  Day  v.  McAllister,  15  Gray  Cannon  v.  Ryan,  49  N.  J.  L.  314,  8 
(Mass.),  433;   Finn  v.  Donahue,  35  A.  293. 

Conn.   216;    Pope  v.   Linn.   50  Me.  3.  Stebbins     v.     Peck,     8     Gray 

83;     Ladd     v.     Rogers.     11     Allen  (Mass.),  553. 


§§    192,  193  CONTKACTS    IN    VIOLATION    OF    LAW.  Oh.    6 

ratification  of  a  transaction  which,  at  the  time  of  its  perform- 
ance, was  prohibited  by  statute.  The  parties  cannot  legalize 
that  which  the  law  has  declared  illegal.  It  is  competent  to  them 
to  impart  a  new  efficacy  to  a  voidable  act,  but  they  have  no 
power  to  give  life  to  an  act  which,  from  reasons  of  public  policy, 
has  been  ordained  by  the  legislature,  to  be  absolutely  void.^  But 
a  new  contract,  express  or  implied,  may  be  made  on  the  same 
subject,  as  though  nothing  had  been  done  on  Sunday.^ 

§  193.  Third  persons. —  Dating  of  a  contract  on  a  week  day, 
when  it  is  really  executed  on  Sunday,  does  not  render  it  valid. 
But,  in  favor  of  an  innocent  party,  an  indorsee,  assignee,  or 
other  innocent  party,  if  he  bona  fide  and  for  a  valuable  consid- 
eration acquires  his  interest  on  a  week  day,  the  contract  will  be 
good.  So  a  maker  of  a  note  executed  on  Sunday  has  no  equity 
existing  as  to  a  payee  or  bona  fide  assignee  after  maturity.  It 
is  only  against  the  person  in  equal  fault  that  the  maker  can  be 
allowed  to  allege  his  own  turpitude.^ 

There  is  no  reason  why  a  note  should  be  avoided  in  the  hands 
of  the  payee,  who  was  not  aware  of  its  invalidity,  and  has  not 
himself  participated  in  any  violation  of  the  statute  prohibiting 
labor  and  business  on  Sunday.^  So  an  innocent  indorsee  is  not 
affected  by  the  circumstance  of  a  note  dated  on  a  week  day, 
which  was  in  reality  executed  on  Sunday.^  A  party  to  a  con- 
tract, who  has  not  himself  violated  the  law,  is  not  precluded 

4.  See  Watts  v.  Van  Ness,  1  Hill  C.  443 ;  Rosenblatt  v.  Townsley,  73 
(N.  Y.),  76;    Merriam  v.   Stearns,       Mo.  536. 

10  Cush.  (Mass.)  257;  Reeves  v.  1.  Leightmens  v.  Kadetska,  58 
Butcher,  31  M.  J.  L.  224.  Iowa,  676,  12  N.  736,  42  Am.  Rep. 

5.  Bradley  v.  Rea,  103  Mass.  129;  Johns  v.  Bailey,  45  Iowa,  241. 
188,  4  Am.  Rep.  524;  Pope  v.  Linn,  2.  Ray  v.  Cattell,  12  B.  Mon. 
50  Me.  83;  Finn  v.  Donahue,  35  (Ky.)  532;  Dahoney  v.  Dahoney,  7 
Conn.  216;  Pate  v.  Wright,  30  Ind.  Bush  (Ky.),  217;  Hilton  v.  Hough- 
476,  95  Am.  Dec.  705 ;  Butler  v.  Lee,  ton,    35    Me.    143 ;    Commonwealth 

11  Ala.  885,  46  Am.  Dec.  230:  v.  Kendig,  2  Pa.  St.  448;  Lovejoy 
Rainey  v.  Capps,  22  Ala.  288;  Wil-  v.  Whipple,  18  Vt.  379,  46  Am.  Dec. 
liams  V.  Paul,  6  Ring.  653;   Simp-        157. 

son  V.  Nicholls,  3  Mees.  &  Wei.  240;  3.  Trieder  v.  Bank,  31  Ark.  128; 

Van  Hoven  v.  Irish,  3  McCrary,  C.        Iloise  v.  Burapass,  40  Ark.  545. 

214 


Ch.    G         AGREEMENTS    IN    VIOI.ATION    OF   STATUTE.         §§  193-195 

from  enforcing  such  contract,  and  that  the  acceptance  of  a 
bond  on  a  secular  day,  which  was  signed  on  the  Sabbath,  is  not 
a  violation  of  the  law/  And  if  some  steps  are  taken  toward  the 
execution  of  a  contract  on  Sunday,  but  is  not  fully  consum- 
mated until  a  secular  day,  such  contract  is.  not  in  contravention 
of  the  statute.^  And  the  fact  that  a  bond  for  costs  was  signed  on 
Sunday,  but  delivered  to  the  court  on  a  week  day,  does  not 
render  it  void.^ 

§  194.  Contracts  dated  on  Sunday. —  Because  a  contract  is 
dated  on  Sunday  does  not  make  it  a  Sunday  contract.  Hence, 
making  and  delivering  on  a  secular  day,  of  a  promissory  note 
dated  and  to  take  effect  on  a  subsequent  Sunday,  is  not  work 
prohibited  by  the  statute,  for  the  observance  of  the  Sabbath.^ 
So,  where  a  land  contract  was  delivered  on  a  week  day,  the  mere 
fact  that  it  was  dated  as  if  made  on  Sunday  is  not  material,  and 
it  is  valid.^  If  the  contract  is  entered  into  on  a  week  day,  and 
dated  to  be  performed  on  Sunday,  it  is  still  valid,^  unless  some- 
thing prohibited  by  the  statute  is  to  be  done.^*' 

§  195.  Executed  on  Sunday. —  A  contract  made  and  con- 
cluded on  Sunday  cannot  be  enforced  by  action  in  some  States.* 
Hence,  a  loan  of  money  made  on  Sunday  cannot  be  recovered 
back.^     And  so  a  party  to  whom  property  has  been  delivered 

4.  Evansville  v.  Morris,  87  Ind.  N.  910;  Stacy  v.  Kemp,  97  Mass. 
269,  44  Am.  Rep.  763.  166. 

5.  Beitenman's  Appeal,  55  Pa.  10.  Smith  v.  Wilcox,  24  N.  Y. 
St.    183;    Merrill   v.   Downs,   41    N.  353,  82  Am.  Dec.  302. 

H.   72;    State   v.   Young,   23   Minn.  1.  Pike    v.    King,    16    Iowa,    49; 

551;  Prather  v.  Harlan,  6  Bush  (N.  Greene  v.  Godfrey,  44  Me.  25;  Kin- 

Y.),  185.  ney  v.  McDermott,  55  Iowa,  674.  8 

6.  Hall  V.  Parker,  37  l\Iich.  590,  N.  656,  39  Am.  Rep.  191;  Finn  vc 
26  Am.  Rep.  540.  See,  also,  Hilton  Donahue,  35  Conn.  216;  Compare 
V.  Houghton,  35  Me.  143.  Tucker   v.   Mowrey,    12   Mich.   378; 

7.  Stacy  v.  Kemp,  97  Mass.   166.  Brazee  v.  Bryant.  50  Mich.  136.  15 

8.  Lamore  v.  Frisbie,  42  Mich.  N.  49;  Smith  v.  Betin,  15  N.  H.  577. 
186,  3  N.  910.  2.  Finn    v.    Donahue,    35    Conn. 

9.  Aldridge  v.  Bank,  17  Ala.  45;  216. 
Lamore  v.  Frisbie,  42  Mich.  186,  3 

215 


§     195  CONTRACTS    IN    VIOLATION    OF    LAW.  Cll.    6 

under  a  contract  made  on  Sunday  may  maintain  replevin  there- 
for, if  retaken  from  his  possession  without  his  consent  by  the 
other  party.^ 

Where  both  parties  to  a  contract  have  failed  to  comply  with 
the  law,  neither  party  can  invoke  the  aid  of  the  law  to  repudiate 
it." 

Money  paid  on  Sunday  and  retained  afterwards  discharges, 
the  debt.^  So,  payments  made  on  Sunday  and  not  returned,  but 
allowed  on  a  final  accounting,  will  not  avoid  the  contract  on 
which  they  were  received,  as  one  made  in  violation  of  the  Sun- 
day laws.^ 

However  the  cases  are  in  conflict  as  to  executed  contracts. 
Executory  contracts  cannot  be  enlorced  when  illegal  because 
made  on  Sunday.  And  it  has  been  held  that  an  executed  con- 
tract made  by  an  agent  having  full  power,  is  binding  on  his 
principal,  though  it  was  made  on  Sunday,  and  is  within  the 
scope  of  the  agent's  authority.  Hence,  the  mere  fact  that  an 
agent,  in  the  course  of  exercising  a  delegated  authority,  himself 
violates  a  prohibitive  statute,  does  not  liberate  or  discharge  the 
principal  from  the  obligation  of  the  contract,  if  the  contract  be 
one  within  the  scope  of  his  authority.  Thus,  where  an  agent, 
with  full  power,  trades  his  principal's  horse  on  Sunday,  and  the 
contract  is  executed,  the  principal  cannot  sustain  an  action  of 
replevin  to  regain  the  horse,  which  was  delivered  to  the  de- 
fendant by  the  agent.' 

3.  Kinney  v.  McDerraot,  55  Iowa,  5.  Johnson  v.  Willis,  7  Gray 
674,  8  N.  656,  39  Am.  Rep.  191.   See,        (Mass.),  164. 

also,  Smith  v.  Bean,  15  N.  H.  577;  6.  Lamore   v.    Frisbie,    42    Mich. 

Pattee  v.  Greely,   13  Met.    (Mass.)  186,  3  N.  910. 

284.  7.  Ricards  v.  Ricards   (Md.),  56 

4.  Greene  v.  Godfrey,  44  Me.  25.  At.  Rep.  397. 


216 


Ch.    6  AGREEMENTS    IN    VIOL.1TION    OF    STATUTE,  §     196 

ARTICLE  III. 
Statutes  Regulating  Trade  and  Professions. 

Section   100.  Contracts  Prohibited  by  Statute. 

197.  Sealing  of  Weights  and  Measures. 

19S.  Brokers — Peddlers. 

199.  Lawyers. 

200.  Physicians. 

201.  School  Teachers. 

202.  Articles  of  Commerce — Sales  Without  Inspection. 

203.  Minors — Prohibited  Work. 

204.  Contract  Valid  in  Part  and  Void  in  Part. 

205.  Sale  of   intoxicants   Without  a  License. 

§  196.  Contracts  prohibited  by  statute. —  It  is  familiar  law, 
both  in  England  and  America,  that  a  contract  prohibited,  either 
expressly  or  impliedly,  by  statute,  is  illegal  and  cannot  be  en- 
forced.^ Where  a  contract  is  made  in  a  manner  prohibited  by 
a  statute  passed  for  the  protection  of  a  buyer,  no  action  can  be 
maintained  upon  it;  and  where  the  statute  directs  the  mode  in 
which,  the  contract  shall  be  made,  not  following  the  directions 
is  equivalent  to  disobeying  a  prohibition.  And,  if  the  statute 
imposes  a  penalty  upon  the  act  done,  this  will  make  the  con- 
tract void  in  like  manner  as  if  it  were  in  terms  prohibited,  be- 
cause a  penalty  implies  a  prohibition.^  However,  when  the 
statute  enacts  as  one  of  the  means  of  raising  a  revenue,  that 
those  engaged  in  a  particular  occupation  shall  take  out  a  license 
and  pay  a  certain  sum  for  it,  or  be  subject  to  the  payment  of  a 
greater  sum,  by  way  of  penalty,  for  neglecting  to  do  so,  the  only 
consequence  that  follows  the  neglect  or  omission  is  the  liability 

1.  Perkins   v.   Watkins,   2   Baxt.  2.  Law  v.  Hodgson,  11  East,  300; 

(Tenn.)    187 ;  Holt  v.  Green,  73  Pa.  Bartlett     v.     Viner.     Carth.     252; 

St.   198;   Dillon  v.   Allen;  4(>  Iowa,  Little  v.  Poole,  9  Barn.  &  Cr.  192; 

299,  26  Am.  Rep.  145 ;  McConnell  v.  Foster  v.  Taylor,  5   Barn.  &  Adol. 

Kitchens,   20   S.   Car.   430,  47   Am.  887;    Cundell    v.    Dawson,   4    C.    B. 

Rep.   845;    Wood  v.  Armstrong,   54  376;   ^^^leeler  v.  Russell,   17  Mass. 

Ala.  150,  25  Am.  Rep.  671  and  note;  258:     Allen     v.     Hawks,     13     Pick. 

Johnson  V.  Hulings,  103  Pa.  St.  408,  (Mass.)    82;    Pattee  v.    Greely.    13 

49  Am.  Rep.  131.  Met.   (Mass.)   284. 

217 


§§    190,  197  CONTRACTS    IN    VIOLATION    OF    LAW.  Cll.    6 

to  the  penaltj/  for  the  penalty  is  imposed  only  for  the  purpose 
of  securing  the  payment  of  the  amount  required  for  the  taking 
out  of  the  license/ 

But  where  the  object  of  requiring  that  a  license  shall  be  ob- 
tained is  to  limit  the  pursuit  of  certain  callings  to  those  who  are 
declared  duly  qualified  by  the  granting  to  them  of  a  license, 
then  the  penalty  implies  a  prohibition  against  engaging  in  that 
pursuit,  unless  a  license  is  procured  f  or  where,  for  the  purpose 
of  securing  a  more  effectual  compliance  with  the  requirement  of 
a  revenue  law,  it  is  enacted  that  no  one  shall  engage  in  or  carry 
on  a  particular  occupation,  until  he  shall  have  obtained  a  license 
as  provided  for  in  the  act,  it  is  an,  express  prohibition.® 

§  197.  Sealing  of  weights  and  measures. —  Statutes  are  en- 
acted which  have  in  view  the  prevention  of  fraud  or  imposi- 
tion. In  such  case,  though  there  be  nothing  but  a  penalty  im- 
posed for  violation,  such  contracts  are  void.  Thus,  a  statute 
for  selling  and  disposing  of  goods,  wares  and  merchandise  by 
unsealed  and  unproved  scales  or  measures,  implies  a  prohibi- 
tion ;  and  such  sales  being  made  in  violation  of  law,  no  recovery 
can  be  had  for  the  price.'  Hence,  no  action  lies  to  recover  the 
price  of  milk  sold  by  the  can,  at  wholesale,  in  can  not  sealed  ac- 

3.  Johnson  v.  Hodgson,  11  East,  Rep.  20;  Penn.  v.  Bowman,  102  111. 
300 ;  Foster  v.  Taylor,  5  Barn.  &  523 ;  Downing  v.  Ringer,  7  Mo.  585  ; 
Cr.  898 ;  Witherall  V.  Jones,  3  Barn.  Williams  v.  Cheney,  3  Gray 
&  Cr.  221;  Brown  v.  Duncan,  10  (Mass.),  222;  Jones  v.  Smith,  3 
Barn.  &  Cr.  93.  Gray  (Mass.),  500;  Hustis  v.  Pick- 

4.  Griffith  v.  Wells,  3  Denio   (N.  ands,  27  111.  App.  270. 

Y.),  227.  7.  Griffith  v.  Wells,  3  Denio  (N. 

5.  Bartlett  v.  Viner,  Garth.  252;  Y.),  226;  Lewis  v.  Welch,  14  N.  H. 
De  Begius  v.  Armistead,  10  Bing.  294;  Brackettv.  Hoyt,  29  N.  H.  264; 
107;  Foster  v.  Taylor,  5  Barn.  &  Smith  v.  Arnold,  106  Mass.  269; 
Ad.  887.  Woods  v.   Armstrong,   54  Ala.   150, 

6.  Bartlett  v.  Viner,  Carth.  252;  25  Am.  Rep.  671  and  note;  Inger- 
Mitchell  V.  Smith,  4  Dal.  (U.  S.)  soil  v.  Randall,  14  Minn.  304;  Bis- 
269;  Griffith  v.  Wells,  3  Denio  (N.  bee  v.  McAllen,  39  Minn.  143,  39 
Y.),  226;  Smith  v.  Mawhood,  14  N.  W.  299;  Finch  v.  Barclay,  87 
Mees.  &  Wei.  403;  Banking  Co.  v.  Ga.  393,  13  S.  E.  566. 
Rantenberg,    103    111.   460,    42   Am. 

218 


Ch.    G         AGREEMENTS   Ii\    VIOI>.VT10N   OK  STATUTE.         §§  197,  198 

cording  to  statute,  although  the  sealer  refused  to  seal  them,  for 
the  statute  price.^ 

§  198.  Brokers — Peddlers. —  Where  a  statute  or  ordinance 
enacts  a  penalty  for  the  carrying  of  a  particular  business 
without  a  license,  no  action  can  be  maintained  for  services  per- 
formed by  one  who  violates  the  statute  or  ordinance  in  perform- 
ing them.  Thus,  where  it  is  unlawful  to  exercise  within  the 
city  the  business  of  a  real  estate  broker  without  a  license,  a  per- 
son so  engaged  in  negotiating  the  sale  or  exchange  of  real  prop- 
erty, in  violation  of  such  ordinance,  can  recover  no  commission 
for  his  services,^  though  the  sale  is  valid.^  So,  a  broker  who  has 
purchased  mining  stock  for  a  third  party,  in  violation  of  an  or- 
dinance, without  a  license,  cannot  maintain  an  action  for  com- 
missions.^ 

But  a  party  not  a  broker  may  sell  real  estate  without  a  license 
and  collect  a  commission.* 

In  South  Carolian  it  is  said  that  one  of  the  leading  canons  of 
construction  in  cases  of  this  kind,  is  the  test  whether  or  not  the 
license  or  exaction  is  a  police  regulation,  or  a  tax  assessment  for 
the  security  and  collection  of  the  revenue.  If  the  former, 
the  calling  itself  is  invalid,  unless  the  requirement  is  complied 
with ;  but,  if  it  is  a  tax  for  revenue,  then  the  act  done  is  valid. 
The  law  does  not  operate  on  the  business  or  calling,  and  affect 
that,  but  on  the  person,  and  punishes  him  with  penalty  or  other- 
wise.^    Hence,  the  fact  that  a  broker  has  not  paid  the  license 

8.     Miller      v.      Post,      1      Allen  son    v.    Huling,    103    Pa.    St.    501; 

(Mass.),  434;    Ritchie  v.   Boynton,  Holt  v.   Green,  73   Pa.   St.   198,   13 

114  IVIass.  431.     See,  also,  Eaton  v.  Am.    St.    Rep.    737;     Stevenson    v. 

Kegan,    114    Mass.    433;    Bisbee   v.  Ewing,  87  Tenn.  46,  9  S.  W.  30. 

McAllen,   39  Minn.    143,   39   N.   W.  2.  Murray  v.  Bond,  167  111.  368, 

299;  Fineh  v.  Barclay,  87  Ga.  393,  47  N.  E.  717,  59  Am.  St.  Rep.  297. 

13  S.  E.  566.  3.  Hustis    v.     Pickards,    27     111. 

1.  Richardson  v.   Brix,   94   Iowa,  App.  270. 

626,    63    N.    W.    225;    Buckley    v.  4.  O'Neill    v.    Sinclair,    153    111. 

Humanson,  50  Minn.  195,  52  N.  W.  525,  39  N.  E.   124. 

385,   36  Am.   St.   Rep.  637;    Hustis  5.  McConnell   v.  Kitchens,   20  S. 

V.  Piekands,  27  111.  App.  270;  Jobn-  Car.  436;    In  re  Jager,  29  S.  Car. 

219 


§    198  CONTRACTS    IN    VIOLATION    OF    LAW.  Oh.    6 

tax  required  by  an  ordinance  is  no  defense  against  an  action 
brought  by  him  to  recover  compensation  on  a  sale  duly  made.* 
No  action  lies  for  service  rendered  in  peddling  goods  for  an- 
other without  license  in  violation  of  law.'  Nor  can  a  special  act 
of  the  legislature  exempt  honorably  discharged  soldiers  from 
paying  a  license  to  peddle.  This  is  so,  as  the  Fourteenth 
Amendment  to  the  Federal  Constitution  forbids  such  discrimi- 
nation/ because  all  persons  subject  to  such  legislation  shall  be 
treated  alike  under  like  circumstances  and  conditions,  both  in 
the  privileges  conferred  and  liabilities  imposed.^  So  any  statute 
which  provides  that  a  license  to  peddle  shall  not  apply  to  vet- 
erans of  the  civil  war  is  void,  because  it  is  a  discrimination, 
having  no  connection  with  the  duties  of  the  citizens  as  tax- 
payers, and  their  exemptions  of  the  tax  therein  required  of 
others  exercising  the  same  calling  is  favoritism,  and  a  denial  of 
the  equal  protection  of  the  laws.^  A  State  may  require  a  license 
fee  from  persons  in  one  occupation,  and  not  from  those  in  an- 
other, provided  no  discrimination  is  made  between  those  of  the 
same  class ;  but  when  such  discrimination  exists,  it  impairs  that 
equal  right  which  all  can  claim  in  the  enforcement  of  the  laws. 
To  discriminate  between  citizens  by  denying  to  one  class  the 
privilege  of  transacting  business  without  complying  with  con- 
ditions and  exactions  not  required  of  others,  when  the  ground 
of  classification  is  wholly  arbitrary,  is  a  denial  of  the  equal 
protection  of  the  law. 

445,  7  S.  E.  605;  Fairly  v.  Wappoo  8.  Magoun   v.    Bank,    170    U.    S. 

Mills,    44    S.    Car.    227,    22    S.    E.  283,  18  S.  Ct.  594,  42  L.  Ed.   1037. 
108,  29  L.  R.  A.  215.  9.  State  v  Garbroski,    111   Iowa, 

6.  Fairly  v.  Wappoo  Mills,  44  496,  82  N.  W.  959,  56  L.  R.  A.  570, 
S.  Car.  227,  22  S.  E.  108,  29  L.  82  Am.  St.  Rep.  524;  State  v.  Har- 
R.  A.  215.  rington,  68  Vt.  623,  35  A.   515,  34 

7.  Stewartson  V.  Lathop,  12  Gray  L.  R.  A.  100;  State  v.  Cadigan,  73 
(Mass.),  52.  See,  also.  Banks  v.  Vt.  245,  50  A.  1079,  57  L.  R.  A.  666, 
McCosker,  82  Md.  518,  34  A.  539,  87  Am.  St.  Rep.  714.  See,  also.  In 
51  Am.  St.  Rep.  478;  Common-  re  Keymer,  148  N.  Y.  219,  42  N.  E. 
wealth  V.  Newhall,  164  Mass.  338,  667,  35  L.  R.  A.  447 ;  Brown  v.  Rus- 
41    N.    E.    647;     State    v.    Shedroi  sell,   166  Mass.   14,  43   N.   E.    1005, 

(Vt.),  54  At.  Rep.  1081.  53  Am.   St.  Rep.  357  and  note,  32 

L.  R.  A.  253. 

220 


Ch.    G        AGRKEMENTS  IN   VIOLATION  OF  STATUTE.         §§  198,  199 

In  passing  an  ordinance,  a  city  must  not  establish  an  ex- 
orbitant license  fee  for  peddling  and  selling  goods.  So,  a  license 
fee  of  ten  dollars  a  day  imposed  on  itinerant  merchants  is  in- 
valid, because  it  is  unreasonably  burdensome,  in  general  re- 
straint of  trade  and  prohibitory  of  business.^*'  So,  a  fee  of  two 
hundred  and  fifty  dollars  a  month,  or  twenty-five  dollars  a  day, 
imposed  on  a  transient  merchant  is  void.^^  In  general,  when  a 
clear  case  is  presented,  showing  that  the  ordinance  imposes  a 
fee  which  is  unreasonable  or  oppressive,  the  courts  will  not  en- 
fore  it,  the  fee  being  an  unauthorized  restraint  of  trade. ^^ 

§  199.  Lawyers. —  Under  the  same  principle,  a  lawyer  who 
has  not  obtained  a  license,  as  required  by  the  internal  revenue 
law  act  of  the  United  States  CongTess,  cannot  recover  for  pro- 
fessional services  rendered  since  the  passage  of  the  act,  and  be- 
fore it  was  repealed.^  And,  in  general,  an  unlicensed  attorney 
cannot  recover  compensation  for  professional  services.^  But  a 
law  firm,  one  of  which  has  been  duly  licensed,  may  recover  in  a 
joint  action  for  services  rendered  by  the  firm,  when  there  is  no 
prohibitory  statute  which  controls.^  And  in  Virginia  it  is  held 
that  lawyers  practicing  their  profession  without  paying  the 
license  tax  prescribed,  are  subject  to  the  penalty,  but  their 
clients  on  that  account  cannot  refuse  to  pay  them  their  fees  for 
professional  service.*  It  must  be  remembered  that  if  a  law  re- 
quiring a  license  declares  in  terms  that  the  act  or  calling  is  un- 

10.  Carralton  v.  Bazzett,  159  111.  -  607;  Hannibal  v.  Telephone  Co.,  31 
284,  42  N.  E.  837,  31  L.  K.  A.  522.  Mo.   App.   23. 

11.  Othemway  v.  Zekind,  95  1.  Hall  v.  Bishop,  3  Daly  (N. 
Iowa,  622,  64  N.  W.  646,  29  L.  R.  A.  Y.),  109.  See,  also,  Holshue  v. 
734,  58  Am.  St.  Rep.  447.  Morgan,  170  Pa.  St.  217,  32  A.  623. 

12.  Springfield  v.  Jacobs,  101  2.  Hillson  v.  Bro^vne,  3  Colo.  304; 
Mo.  App.  339,  73  S.  W.  1097;  Tug-  Ames  v.  Oilman,  10  Met.  (Mass.) 
man  v.  Chicago,  78  111.  405;  Cald-  243;  Ex  parte  Fellows,  2  Scam. 
well  V.  Alton,  33  111.  416,  85  Am.  (111.)  369;  Hughes  v.  Dougherty, 
Dec.  282  and  note;   Morse  v.  West  62  HI.  App.  464. 

Port,  110  Mo.  502,   19  S.  W.  881;  3.  Harland   v.   Lilienthal,   53   N. 

Gratiot    v.    Railway    Co.,    116    Mo.  Y.  440. 

450,  21  S.  W.  1094,  16  L.  R.  A.  189;  4.  Yates    v.    Robertson,    80    Va. 

La  Mar  v.  Weidman,  57  Mo.  App.  475. 

221 


§§    199,  2  CM)  CONTBACTS    IN    VIOLATION    OF    LAW.  Ct.    6 

lawful  unless  the  law  is  complied  with,  then  the  act  or  calling 
is  prohibited,  and  a  contract  made  under  it  cannot  be  sued  on. 
If,  however,  there  is  no  express  and  specific  prohibition,  then  it 
is  necessary  to  construe  the  act  or  ordinance  and  see  whether  the 
intent  is  to  prohibit.^ 

§  200.  Physicians. —  The  application  of  the  law  is  made  as 
to  physicians  who  undertake  to  practice  the  profession  of  medi- 
cine without  a  license  required  by  statute;  and  where  the  law 
prohibits  the  act,  the  physician  can  recover  no  compensation 
for  his  services  if  he  has  not  procured  the  license,^  though  it 
appears  that  he  may  recover  upon  an  implied  contract  for  ser- 
vices rendered  after  such  license  is  procured.^  The  physician 
must  comply  with  the  statute  when  prohibitory,  or  he  cannot 
collect  for  his  services.^ 

This  is  upon  the  principle  that  where  a  statute  has  for  its 
manifest  purpose,  the  promotion  of  some  object  of  public  policy, 
and  prohibits  the  carrying  on  of  a  profession,  occupation,  trade 
or  business,  except  in  compliance  with  the  statute,  a  contract 
made  in  violation  of  such  statute  cannot  be  enforced.^ 

5.  Harris    v.    Runnels,    12    How.  710;     Eiehardson    v.    Dorraan,    28 

(U.  S.)  84.  Ala.  679;  Jordan  v.  Dayton,  4  Ohio, 

1.  Haworth  v.  Montgomery,  91  295;  Underwood  v.  Scott,  43  Kans. 
Tenn.  16,  18  S.  W.  399;  Orr  v.  714,  23  P.  942;  Dow  v.  Haley,  30 
Meek,  111  Ind.  40,  11  N.  E.  787;  N.  J.  L.  354;  Bibber  v.  Simpson,  59 
Cooper  V.  Griffin,  13  Ind.  App.  212,  Me.  181;  Downs  v.  Minchew,  30 
40  N.  E.  710;  Eastman  v.  State,  109  Ala.  86;  Gaither  v.  Lindsey  (Tex.), 
Ind.  278,  10  N.  E.  ^7,  58  Am.  Rep.  83  S.  W.  225. 

400;  Coyle  v.  Campbell,  10  Ga.  570.  4.  Haworth    v.    Montgomery,    91 

2.  Gardner  v.  Tatum,  81  Cal.  Tenn.  16,  18  S.  W.  399;  Compare 
370,  22  P.  880.  Aiken  v.  Blaisdell,  41  Vt.  655,  666. 

3.  Adams  v.  Stewart,  5  Har.  See,  also,  People  v.  Arendt,  60  111. 
(Del.)  144;  Holmes  v.  Halde,  74  App.  89;  Paquin  v.  State  Board,  19 
Me.  28,  43  Am.  Rep.  567 ;  Puckett  v.  R.  I.  365,  33  A.  870,  Boucher  v. 
Alexander,  102  N.  Car.  95,  8  S.  E.  State  Board,  19  R.  I.  361,  33  A. 
707,  3  L.  R.  A.  43;  Bailey  v.  Mogg,  878;  McCurry  v.  Gibson,  108  Ala. 
4  Denio  (N.  Y.),  60;  Davidson  v.  451,  18  So.  806,  54  Am.  St.  Rep. 
Bohlman,  37  Mo.  App.  576;  East-  177;  State  v.  Bonham,  96  Iowa, 
man  v.  State,  109  Ind.  278,  10  N.  252,  65  N.  W.  154;  Maxwell  v. 
E.  97,  58  Am.  Rep.  400;  Cooper  v.  Swigart,  48  Neb.  789,  67  N.  W.  789; 
Griffin,  13  Ind.  App.  212,  40  N.  E. 

222 


Ch.    6        AGREEMENTS   IN   VIOLATION   OF   STATUTE.         §§  200-202 

But  a  physician  does  not  come  under  the  rule  of  a  common 
carrier  or  innkeeper,  and,  therefore,  may  refuse  to  attend  any 
person  who  calls  him,  even  if  the  usual  fee  is  tendered.^ 

§  201.  School  teachers. —  So,  a  school  teacher  is  entitled  to 
no  compensation  for  services,  if  he  has  not  a  certificate  as  pre- 
scribed by  law.^  So,  where  a  teacher  is  employed  who  has  no 
certificate  to  teach,  the  contract  of  hiring  is  void,  and  is  not  sus- 
ceptible of  subsequent  ratification.^  But  a  teacher  is  entitled  to 
compensation  for  services  rendered  in  good  faith  under  a 
license  prima  facie  correct,  notwithstanding  irregularity  in  issu- 
ing it  by  the  proper  officer.^ 

§  202.  Articles  of  commerce — Sales  without  inspection, — 

Articles  of  commerce,  such  as  fertilizers,  are  generally  sold 
under  restrictions,  and  the  statute  must  be  followed  in  order  to 
make  a  valid  sale.  Thus,  a  contract  for  the  sale  of  a  fertilizer 
not  labeled,  as  required  by  statute,  is  void,  although  such  sale  is 
not  expressly  prohibited.  Because  the  penalty  fixed  for  selling 
without  complying  with  the  statute,  implies  a  prohibition,  it 
being  manifest  that  the  statute  was  enacted  for  the  purpose  of 
protecting  the  public  against  the  fraudulent  sale  of  goods,  not 
for  the  purpose  of  raising  revenue.'  And  so,  where  a  merchant 
sells  fertilizers  without  complying  with  the  statute  and  takes  a 
note  for  the  purchase-money,  he  cannot  maintain  an  action  on 
the  note.^°  So,  where  articles  of  commerce  are  subject  to  inspec- 
tion before  they  can  be  sold,  a  contract  of  sale  is  void  if  made 

Harrison  v.  State,  102  Ala.  170,  15  Dist.,  27  Minn.  433;  Board  v.  Wag- 
So.    563;     O'Coanor    v.    State,    46  aman  (Md.),  35  At.  Rep.  85. 
Neb.   157,  64  N.  W.  719;   State  v.  7.  Wells  v.  People,  71  111.  532. 
Smith,  60  Mo.  App.  283.  8.  Hill  v.  Swinney,  72  Miss.  248, 

5.  Hurley  v.  EddenfieM,  156  Ind.  16    So.    497.      See,   also,    Keller    v. 
416,  59  N.   E.  Rep.   1058,  53  L.  R.  Hewitt,   109  Cal.   146,  41   P.  871. 
A.  135,  83  Am.  St.  Rep.  198.  9.  Vanmeter  v.  Spurrier,  94  Ky. 

6.  Jemness  v.  School  Dist.,  12  22,  21  S.  W.  337;  Brown  v.  Adair, 
Minn.  448 ;  Sinnott  v.  Colombet,  107  104  Ala.  652,  16  So.  439. 

Cal.  187,  40  P.  329;  Ryan  v.  School  10.  McConnell  v.  Kitchen,  20  S. 

Car.  430,  47  Am.  Rep.  845. 

223 


§§    202,  203  CONTRACTS    IN    VIOLATION    OF    LAW.  Oh.    6 

before  the  inspection  provided  by  statute,  and  if  the  article 
proves  worthless,  this  is  wholly  immaterial.  And  in  Georgia 
there  can  be  no  recovery,  even  of  the  contract  comes  into  the 
hands  of  a  bona  fide  holder/^ 

These  cases  are  decided  on  the  principle  that  a  contract  void 
which  a  statute  prohibits  under  penalty  is  void  although  the 
statute  does  not  expressly  so  provide/^  And  a  subsequent  re- 
peal of  the  statute  without  any  saving  clause  as  to  penalties 
already  incurred,  will  not  validate  the  contract  void  under  the 
law  in  existence  when  the  contract  was  made.^^ 

§  203.  Minors — Prohibited  work. —  A  father  cannot  bring  an 
action  to  collect  the  wages  of  his  minor  child  where  the  work  is 
prohibited  by  statute.  So,  where  a  parent  hires  his  son  out  to 
work  in  a  factory,  which  is  forbidden  by  statute,  he  cannot 
collect  for  the  minor's  wages.  Because  when  he  begins  an 
action  for  the  compensation,  he  is  suing  for  an  act  in  violation 
of  the  statute,  for  having,  done  a  forbidden  thing. ^  Such  stat- 
ute is  intended  for  the  good  of  the  minor,  and  also  for  the  good 
of  the  public.  And  so  the  law  will  not  help  a  man  to  recover 
pay  for  doing  what  the  law  says  shall  not  be  done.^ 

And  so  an  employer  who  puts  a  child,  under  the  age  specified 
by  law,  to  work  on  a  printing  press-,  where  the  minor  is  injured, 
the  employer  is  liable  civilly  for  damages,  on.  account  of  his 
violation  of  law,  and  the  question  of  negligence  of  the  child  is 
for  the  jury.^  The  employer  having  violated  the  law,  he  cannot 
call  upon  the  law  to  help  him  escape  the  liability  or  injury.  It 
is  only  justice  that  he  restores  the  minor's  injury  by  a  money 

11.  Johnson  v.  McConnell,  65  Ga.  13.  Woods  v.  Armstrong,  54  Ala. 
i29;  Conley  v.  Blalock,  71  Ga.  161.  150,  25  Am.  Rep.  671  and  note. 

12.  Woods  V.  Armstrong,  54  Ala.  1.  Birkett  v.  Chatterton,  13  R. 
150.  25  Am.  Rep.  671  and  note;  I.  299,  43  Am.  Rep.  30. 
O'Donnell  V.  Sweeney,  5  Ala.  468,  39  2.  Peck  v.  Burr,  10  N.  Y.  294; 
Am.  Dec.  336.  See,  also.  Pacific  Levy  v.  Yates,  8  Ad.  &  El.  129 ;  Gal- 
Guano  Co.  V.  Mullen,  66  Ala.  582 ;  lini  v.  Laborie,  5  T.  R.  242. 
Campbell  v.  Segars,  81  Ala.  259,  20  3.  Marino  v.  Lahmaier,  28  N.  Y. 
So.  668.  L.  Jour.  2139,  173  N.  Y.  530,  66  N. 

E.  572,  61  L.  R.  A.  807. 

224 


Ch.   6        AGKEEMENTS  IN  VIOLATION  OF  STATUTE.         §§  203,  204 

compensation.  Whether  the  employment  of  a  minor  in  viola- 
tion of  the  child  labor  law,  is  negligence  per  se  by  the  employer 
or  only  evidence  of  negligence  is  a  question  not  answered  alike 
by  the  courts.  Many  hold  the  violation  of  such  law  is  negli- 
gence per  se,  when  the  minor  is  injured  in  the  employment,  and 
others  that  it  is  evidence  of  negligence.  This  last  rule  is  the 
New  York  doctrine.^  The  true  rule  should  be  that  whenever  it 
is  clear  from  the  interpretation  of  the  statute  that  the  exact 
consequences  against  which  it  was  intended  to  provide  have  act- 
ually ensued  from  its  violation,  the  act.  is  negligence  per  se; 
but  if  the  injury  is  merely  collateral,  the  breach  is  evidence  of 
negligence  of  the  employer.^  The  object  of  the  statute  is  to  fix 
the  age  limit  below  which  it  is  neither  safe  nor  proper  to  employ 
a  child.  It  shows  that  a  child  below  the  age  limit  is  not  capable 
of  exercising  due  care  around  machinery,  and  any  such  employ- 
ment is  a  dangerous  and  wrongfvil  act.  The  employer  should 
be  liable  for  all  the  direct  consequences,  that  is,  all  the  natural 
and  probable  consequences.® 

§  204.  Contract  valid  in  part  and  void  in  part. —  As  a  gen- 
eral rule,  where  a  promise  is  made  for  one  entire  consideration, 
a  part  of  which  is  fraudulent,  immoral,  or  unlawful,  and  there 
has  been  no  apportionment  made,  or  means  of  apportionmeni 
furnished  by  the  parties  themselves,  it  is  well  settled  that  no 
action  will  lie  upon  the  promise.  If  the  bad  part  of  the  con- 
sideration is  not  severable  from  the  good,  the  whole  promise 
fails."^ 

When  it  appears  that  the  consideration  was  made  up  of  sev- 
eral distinct  transactions,  some  of  which  are  entirely  honest  and 

4.  Marino  v.  Lahmaier.  173  N.  Cush.  (Mass.)  1,  59  Am.  Dec.  131; 
Y.  530,  66  N.  E.  572,  (51  L.  R.  A.  Woodruff  v.  Wentworth,  133  Mass. 
807.  309;  Clark  v.  Ricker,  14  N.  H.  44; 

5.  Hays  v.  Railroad  Co.,  Ill  U.  Woodruff  v.  Hinman,  11  Vt.  592, 
S.  228,  4  S.  Ct.  369.  34  Am.  Dec.  712;  Pickenny  v.  Rail- 

6.  Stone  v.  Railroad  Co.,  171  way  Co.,  3  C.  P.  235 ;  Harrington  v. 
Mass.  544,  51  N.  E.  1.  Dock  Co.,  3  Q.  B.  D.  549;  Bishop  v. 

7.  Robinson  v.  Green,  3  Met.  Palmer,  146  Mass.  469,  16  N.  E. 
(Mass.)    159;    Rand  v.  Mather,   11        299,  4  Am.  St.  Rep.  339. 

225 


§§    204,  205  CONTKACTS    IN    VIOLATION    OF    LAW.  Oh.     6 

fair,  and  tlie  valid  consideration  can  be  separated  with  certainty 
and  ease  from  the  vicious,  then  it  may  be  held  good  for  so  much 
as  is  free  from  the  taint  of  illegality.^ 

§  205.  Sale  of  intoxicants  without  a  license. —  Statutes  are 
enacted  to  regulate  the  sale  of  intoxicating  liquors.  These  regu- 
lations are  intended  to  protect  the  public  against  the  conse- 
quence which  may  be  expected  to  follow  from  allowing  all  per- 
sons, at  their  pleasure,  to  deal  in  strong  liquors.  And  although 
the  statute  only  inflicts  a  penalty  for  selling  without  a  license, 
the  contract  is  illegal,  and  no  action  will  lie  to  enforce  it.^  Such 
statutes  look  beyond  the  question  of  revenue,  and  have  in  view 
the  protection  of  the  public  health  or  morals,  or  the  prevention 
of  frauds  by  the  seller,  and  such  contracts  cannot  be  enforced.^ 

And,  in  an  action  upon  an  account  stated,  the  defendant  may 
plead  and  prove  that  the  whole  claim  was  founded  in  an  illegal 
transaction  f  such  as  the  sale  of  intoxicating  liquors  in  violation, 
of  law.* 

But  the  mere  knowledge  by  the  vendor  that  liquor  is  to  be 
resold  in  violation  of  the  statute,  without  participation  in  the 
illegality,  will  not  vitiate  the  sales  he  makes  to  the  intermediate 
dealers.^  But  if  the  vendor  designedly  contributes  to  the  scheme, 

8.    Carleton    v.     Woods,     28     N".  247 ;  Griffitli  v.  Wells,  3  Denio   (N. 

H.  290;  Feldman  v.  Gamble,  26  N.  Y.),    226.      See,    also,    Springfield 

J.    Eq.    494;    Scott    v.    Gilmore,    3  Bank  v.  Merrick,  14  Mass.  322. 
Taunt.    226 ;    Gotten   v.    McKenzie,  2.  Law  v.  Hodgson,  2  Camp.  147 ; 

57  Miss.  418;    Shurman  v.  Thomp-  Brown  v.   Duncan,   10  Barn.  &  Cr. 

son,  11  Ad.  &  E.   1027;    Sawyer  v.  93;    Foster    v.     Taylor,    3    Nev.   & 

Smith,    109    Mass.    220;    Eaton    v.  Man.  244;   Little  v.  Poole,  9  Barn. 

Kegan,    114    Mass.    433;    Allen    v.  &  Cr.   192;   Wheeler  v.  Russell,   17 

Pearce,  84  Ga.  606,  10  S.  E.  1015.  Mass.  258. 

1.  Knowlton   v.    Dorety,    87    Me.  3.  Thomas  v.  Hawkes,  8  Mees.  & 

518,  33  A.  18,  47  Am.  St.  Rep.  349;  Wei.    140;    Cocking  v.   Ward,    1   C. 

Storz  V.   Finkelstein,  46  Neb.   577,  B.  858,  870;  Kennedy  v.  Brown,  13 

65   N.   W.    195,   30   L.   R.  A.    644;  C.     B.     N.     S.     677;    Rundlett    v. 

Woodford    v.    Hamilton,    139    Ind.  Weber,  3  Gray   (Mass.),  263. 
481,  39  N.   E.  47;   Gipps  Brewing  4.  Dunbar  v.  Johnson,  108  Mass. 

Co.  V.  De  France,  91  Iowa,  108,  58  519. 

N.  W.  1087,  28  L.  R.  A.  386;  Hoi-  5.  Tatum  v.  Kelly,  25  Ark.  209. 

den  V.  Brooks,  66  N.  H.  184,  20  A. 

226 


CL  6 


AGRJSEMENTS    IN    VIOLATION    OF    STATUTE. 


§    205 


or  is  to  derive  a  benefit  from  it,  or  if  there  is  unity  of  purpose 
between  him  and  the  party  to  be  supplied,  he  is  affected  with, 
the  latter's  criminality,  and  the  contract  is  void.^  All  sales  with- 
out a  license  are  prohibited  and  are  illegal.  Such  statutes  are 
not  for  the  mere  purpose  of  revenue,  but  for  the  regulation  of 
the  sale  of  intoxicants,  and  where  no  license  has  been  pro- 
cured, the  vendor  cannot  collect  the  price  from  the  vendee.' 

And  so  the  owner  of  a  building,  who  wilfully  suffers  it  to  be 
used  for  the  illegal  sale  of  intoxicating  liquors,  cannot  recover 
for  the  use  and  occupation  of  the  same  for  the  period  during 
which  he  suffers  it  to  be  so  illegally  used.^ 

A  party  may  sell  intoxicating  liquors  in  another  State,  if  not 
against  the  statute  of  that  State,  and  collect  the  price  f  but  if  it 
be  against  the  statute  of  the  latter  State  and  a  contract  of  that 
State,  it  will  be  illegal.^"^ 


6.  Fisher  v.  Lord,  63  N.  H.  514, 
3  A.  927;  Foster  v.  Thurston,  11 
Cush.  (Mass.)  322;  Riley  v.  Jordan, 
122  Mass.  231;  O'Bryan  v.  Fitz- 
gerald, 48  Ark.  48,  3  S.  W.  527. 

7.  Territt  v.  Bartlett,  21  Vt.  184; 
Vannoy  v.  Patton,  5  B.  Mon.  (Ky.) 
248;  Cobb  v.  Billings,  23  Me.  470; 
Lewis  V.  Welch,  14  N.  H.  294;  Sol- 
oman  v.  Dresehier,  4  Minn.  278; 
Melchoir  v.  McCarthy,  31  Wis.  252, 
11  Am.  Rep.  605;  Bach  v.  Smith,  2 
Wash.  Ter.  145;  Bancroft  v.  Dumas, 


21  Vt.  456;  Boutwell  v.  Foster,  24 
Vt.  485. 

8.  Mitchell  v.  Scott,  62  N.  H. 
596.  See,  also.  Bliss  v.  Brainard, 
41  N.  H.  256;  Allen  v.  Deming,  14 
N.  H.  133,  40  Am.  Dec.  179;  Lewis 
V.  Welch,  14  N.  H.  294. 

9.  Holden  v.  Brooks,  66  N.  H. 
184,  20  A.  247. 

10.  Gipps  Brewing  Co.  v.  De 
France,  91  Iowa,  108,  58  N.  W. 
1087,  28  L.  R.  A.  3B6,  51  Am.  St. 
Rep.  329.     . 


227 


§    206  CONTKACTS    IN    VIOLATION    OF    LAW.  Ch.    6 

AKTICLE  IV. 

Usurious  Contracts. 

Section  206.  Definition. 

207.  Statutory  Provisions. 

208.  Intent  is  Essential  to  Constitute  Usury, 

209.  Lending  and  Borrowing  Money. 

210.  Legal  Interest — Commission. 

211.  Agent  of  the  Party  Loaning. 

212.  Discount  of  Accommodation  Paper. 

213.  Taking  Personal  Property  as  Interest. 

214.  Cash  and  Credit. 

215.  In  Purchase  Price  of  Land. 

216.  Bonus  for  Consideration  of  Making  the  Loan. 

217.  Antedating  a  Note — Interest  Payable  in  Advance. 

218.  Hiring  or  Renting  Securities. 

219.  Building  and  Loan  Association. 

220.  Building  Associations  Must  Keep  Within  the  Statute. 

221.  Premiums  and  Exchange. 

222.  Compound  Interest. 

223.  Statutory  Provisions. 

224.  Interest  Coupons. 

225.  Recovering  Back  Usurious  Interest. 

226.  Computation  of  Interest — Compounding. 

227.  Taxes  and  Expenses. 

228.  Commission  and  Discount. 

229.  Attorney's  Fees. 

230.  Sale  of  Security — Innocent  Purchaser. 

231.  Absolute  Sale  with  Agreement  to  Repurchase. 

232.  National   Banks. 

233.  Mistake  in  Taking  Interest. 

234.  Renewal  Notes  and  Mortgages. 

235.  Contracts  Having  an  Independent  Existence. 

236.  Evidence — Sufficiency. 

237.  Who  May  Plead  Usury. 

238.  Waiver  of  Usury. 

239.  Burden  of  Proof. 

240.  Place  of  Payment  of  Interest — Conflict  of  Laws. 

241.  Payment  may  be  Controlled  by  Contract. 

242.  Computation  of  Interest — At  Stated  Periods. 

243.  The  Law  of  Another  State  Must  be  Pleaded. 

§  2o6.  Definition. —  Usury  is  the  excess  over  the  legal  rate 
charged  to  a  borrower  for  the  use  of  money.     Originally,  the 

228 


Ch.    6        AGREEMENTS   IN   VIOLATION   OF   STATUTE.         §§  206-208 

word  was  applied  to  all  interest  reserved  for  the  use  of  money ; 
and  in  the  early  ages  taking  such  interest  was  not  allowed.^  To 
constitute  usury  there  must  be:  1.  A  loan,  expressed  or  im- 
plied ;  2.  An  understanding  between  the  parties  that  the  money 
shall  be  returned ;  3.  That  a  greater  rate  of  interest  than  is  al- 
lowed by  law  shall  be  paid  or  agreed  to  be  paid ;  4.  A  corrupt 
intent  to  take  more  than  the  legal  rate  for  the  use  of  the  sum 
loaned.^  Money  paid  above  the  legal  rate  for  the  forbearance 
of  an  existing  debt  is  usury.^ 

§  207.  Statutory  provisions. —  The  statutory  provisions  as  to 
the  law  of  usury  are  frequently  changed  and  modified.  Some 
of  the  States  have  no  usury  laws,  and  there  is  no  uniformity 
in  the  laws  of  the  other  States  in  this  regard.  In  many  of  the 
States  there  is  a  forfeiture  of  the  usury  above  the  statutory 
rate;  and  in  other  States  all  usurious  contracts  are  void.  In 
few  of  the  States  it  is  a  misdemeanor  to  take  usury.* 

§  208.  Intent  is  essential  to  constitute  usury. —  To  charge 
one  with  usury  he  must  know  of  and  be  a  party  to  the  intent  to 
violate  the  law  against  usury.^  While  intent  is  essential  to  con- 
stitute usury,  yet  the  intent  must  be  deduced  from,  and  de- 
termined by,  the  facts.  The  voluntary  taking  and  reserving  a 
greater  interest  or  compensation  for  a  loan  than  that  allowed  by 
law  is  per  se  usurious.  So  the  offense  is  not  ordered  dismissed 
by  a  want  of  intent  to  violate  the  statute  or  by  giving  the  trans- 
action another  name  than  that  of  a  loan.^ 

1.  Bouvier's  L.  Diet.  84;     Compare     Omaha     Loan     and 

2.  Miller  v.  Ins.  Co.,  118  N.  Car.  Trust  Co.  v.  Hanson,  46  Neb.  870, 
612,  24  S.  E.  484,  54  Am.  St.  Rep.  65  N.  W.  1058.  See  What  Law 
741;  Balfour  v.  Davis,  14  Oreg.  47;  Governs  Usurious  Contracts. — 17 
Roe  V.  Kiser,  62  Ark.  92,  34  S.  W.  Harv.  L.  Review,  568. 

534,  54  Am.  St.  Rep.  288;  Tyler  on  4.  Pingrey  on  Mortg.  770. 

Usury,   110;   McGuire  v.   Campbell,  5.  Jackson   v.    Travis,    42    Minn. 

58   ni.  App    **8.  438,  44  N.  W.  316;  Garvin  v.  Len- 

3.  Hathaway   v.    Hagan,    59    Vt.  ton,  62  Ark.  370,  35  S.  W.  430. 

75,  8  A.  678;  Bang  v.  Windmill  Co.,  6.  Cooper  v.   Nock,  27   111.   301; 

96  Tenn.  361,  34  S.  W.  516;  Chase  Kelley  v.  Lewis,  4  W.  Va.  456;  Cul- 
V.  Whitten,  62  Minn.  498,  65  S.  W.        ver  v.   Pullman,   59   Hun    (N.   Y.), 

229 


§§  208,209 


CONTRACTS    IN"    VIOLATION    OF    LAW. 


Ch.    6 


Because  interest  has  been  calculated  and  included  in  the 
mortgage  debt  in  excess  of  the  strict  legal  right,  does  not  make 
a  usurious  contract  ;^  and  an  agreement  for  the  highest  rate  of 
interest,  payable  semi-annually  or  quarterly,  is  not  usurious,* 
nor  is  taking  the  highest  rate  in  advance  for  a  whole  year.* 

An  agreement  by  a  borrower  upon  mortgage  to  allow  the 
lender  to  retain  part  of  the  land  mortgaged  after  being  repaid 
principal  and  interest  of  the  loan,  if  it  is  part  of  the  mortgage 
transactions,  is  usurious,  and  will  not  be  enforced.^"  But  the 
mortgagor  may  agree  to  pay  the  taxes,  which  may  be  included 
with  the  interest,  and  the  agreement  will  not  be  usurious. ^^ 


§  209.  Lending  and  borrowing  of  money. —  Where  the  trans- 
action is  not  the  loaning  of  money,  the  question  of  usury  can- 
not arise. ^^  But  if  the  transaction  be  really  a  borrowing  and 
loaning  of  money  at  an  unlawful  rate  of  interest,  no  ingenuity 
can  give  it  a  form  that  will  shield  it  against  impeachment  and 
judicial  investigation.^^     If  the  parties  understand  that  more 


615,  12  N.  Y.  S.  663;  Fiedler  v. 
Darrin,  50  N.  Y.  437 ;  Steele  v.  An- 
drews, 19  N.  J.  Eq.  409;  Scruggs 
V.  Mort.  Co.,  54  Ark.  566,  16  g.  W. 
563;  Duvall  v.  Bank,  7  Gill  &  J. 
(Md.)  44;  Childers  v.  Deane,  4 
Eand.    (Va.)    406. 

7.  Spencer  v.  Ayrault,  10  N.  Y. 
202, 

8.  Goodrich  v.  Eeynolds,  31  111. 
490,  83  Am.  Dec.  240;  Meyer  v. 
Muscatine,  1  Wall.  (U,  S.)  384; 
Mowry  v.  Bishop,  5  Paige  (N.  Y.), 
98. 

9.  Telford  v.  Garrels,  132  01.  550, 
24  N.  E.  373;  Tholen  v.  Duffy,  7 
Kans.  405 ;  Fowler  v.  Trust  Co.,  141 
U.  S.  384,  408,  411,  12  S.  Ct.  8; 
Mitchell  V.  Lyman,  77  111.  525; 
Brown  v.  Mortg.  Co.,  110  111.  235; 
Hoyt  V.  Pawtucket  Inst.,  110  111.  390. 
390;  Vahlberg  v.  Keaton,  51  Ark. 
534,  11  S.  W.  878,  4  L.  R.  A.  462,  14 


Am.  St.  Rep.  73;  English  v.  Smock, 
34  Ind.  115,  7  Am.  Rep.  215;  Newell 
V.  Bank,  12  Bush.  (Ky.)  57;  Polen 
V.  Palmer,  53  111.  App.  223;  Bank 
V.  Cook,  60  Ark.  283,  30  S.  W.  35, 
29  L.  E.  A.  761  and  note,  46  Am. 
St.  Rep.  171  and  note;  Parker  v. 
Cousins,  2  Gratt.  (Va.)  372,  44 
Am.  Dec.  388. 

10.  Gleason  v.  Burke,  20  N.  J.  Eq. 
300.  See,  also,  Lombard  v.  Gregory, 
81  Iowa,  569,  47  N.  W.  298;  Suc- 
cession of  Latchford,  42  La.  Ann. 
529,  7  So.  628;  Southall  v.  Parish, 
85  Va.  403 ;  Keagy  v.  Trout,  85  Va- 
390,  7  S.  E.  534. 

11.  Dutton  V.  Aurora,  114  111.  138, 
28  N.  E.  461;  Compare  Hodgdon  v. 
Davis,  6  Dak.  21,  50  N.  W.  478. 

12.  Struthersv.Drexel,  122  U.  S. 
487,  7  S.  Ct.  1293. 

13.  Gaither  v.  Clarke,  67  Md.  18, 
9  A.  632,  10  A.  309. 


230 


Ch.    G        AGREEMENTS   IN   VIOLATION   OF   STATUTE.         §§  209-211 

than  legal  interest  is  taken,  no  contrivance  can  cover  it,  and 
the  real  nature  of  the  transaction  will  be  considered ;  but  if  no 
loaning  and  borrowing  of  money  is  made,  the  transaction  will 
not  be  usurious  as  there  can  be  no  basis  for  usury." 

§210.  Legal  interest — Commission. —  A  loaner  of  money  may 
receive  the  legal  rate  of  interest  and  also  a  commission  for  the 
care  and  management  and  sale  of  property  shipped  him.  Thus 
a  contract  between  a  commission  merchant  and  a  dealer  in  pro- 
duce, by  which  the  former  agrees  to  advance  money  at  the  legal 
rate  of  interest  to  enable  the  dealer  to  purchase  or  carry  his 
produce,  and  is  also  to  receive  a  percentage  upon  the  money 
advanced  as  a  commission  for  the  care,  management  and  sale  of 
the  property,  is  not  per  se  usurious  ;^^  the  omis  is  upon  the  party 
seeking  to  impeach  the  transaction  to  show  a  guilty  intent  and 
that  the  contract  was  to  cover  usury. ^^  Such  question  may  be 
submitted  to  the  jury,  as  such  contract  is  not  per  se  and  of  neces- 
sity usurious ;  but  it  does  not  follow  that  every  contract,  usual 
and  customary  in  its  terms,  is  in  all  cases  to  be  submitted  to  a 
jury  with  liberty  to  find  it  usurious  and  void  upon  mere  con- 
jecture or  caprice,  and  without  evidence  to  impeach  it,  merely 
because  the  contract  may  be  made  a  cover  for  usury,  and  imder 
some  circumstances  may  be  invalid  for  that  reason." 

§  211.  Agent  of  the  party  loaning. —  If  the  agent  of  the 
party  loaning  the  money  takes  commission  without  the  knowl- 
edge and  consent  of  the  loaner,  this  is  not  usury.^    But  if  the 

14.  Hartranftv.UTilinger,  115  Pa.  190;    Blackburn  v.  Hayss,  59  Ark. 

St.  270,  8  A.  244;  Drury  v.  Wolfe,  366,  27   S.  W.  240. 

34  111.  App.  23.   134  111.  294,  25  N.  16.  Matthews   v.    Coe,   70   N.   Y. 

E.  626 ;  Tyson  v.  Rickard,  3  Har.  &  230.   2(5  Am.   Rep.   583 ;   Thomas  v. 

J.     (Md.)     109,    5    Am.    Dec.    424;  Murray.    32    N.    Y.    605;    Booth    v. 

Swayne  v.  Riddle,  S7   W.  Va.   291,  Sweezy,  4  Seld.   (X.  Y.)  280;  Smith 

16  S.  E.  512.  V.  Marvin,  27  N.  Y.  137. 

15.  Elliott  V.  Sugg,  115  N.  Car.  17.  Cockle  v.   Flack,  93  U.  S.  344. 

236.  20  S.  E.  450;   Cockle  v.  Flack,  1.  George  v.  Security  C,  109  Ala. 

93  U.  S.  344;  Norwood  V.  Faulkner,  548,   20   So.    331;    Fowler   v.   Trust 

22  S.  Car.  367,  53  Am.  Rep.   717;  Co.,    141    U.    S.    385,   12    S.    Ct.    8; 

Woolsey  v.  Jones,  81  Ala.  88,  4  So.  Call  v.  Palmer,  116  U.  S.  98,  6  S. 

231 


§§    211,  212  CONTRACTS    IN    VIOLATION    OF    LAW.  Ch.    6 

leaner  instructs  his  agent  to  take  a  commission,  or  knows  it  and 
the  rate  of  interest  is  full  legal  rate,  then  such  transaction  is 
usurious.^  And  if  the  agent  included  the  commission  in  the  prin- 
cipal of  a  note,  and  takes  full  legal  rate  of  interest  besides,  then 
the  transaction  is  usurious  though  the  loaner  did  not  know  of 
the  agent's  commission.^ 

§  212.  Discount  o£  accommodation  paper. —  It  is  commonly 
held  that  where  a  promissory  note  has  been  fairly  made,  and 
there  is  no  usury  between  the  original  parties,  so  that  the  payee 
has  acquired  a  legal  right  to  sue  the  maker  thereon,  he  may 
then  dispose  of  it  at  any  rate  of  discount  from  its  face,  and  the 
purchaser  will  have  a  right  to  enforce  its  full  payment  against 
the  maker.*  In  respect  to  an  accommodation  note  sold  or  nego- 
tiated at  a  greater  rate  of  discount  than  legal  interest,  the  au- 
thorities are  not  uniform.  One  class  of  cases  holds  that  the  pur- 
chaser of  such  note  from  the  payee,  being  the  first  party  paying 
anything  for  it,  is  therefore  the  first  owner,  and  that,  as  the 
payee  before  the  sale  of  the  note  had  not  acquired  a  legal  right 
to  sue  the  accommodation  maker,  the  purchaser  must  pay  the 
full  face  of  the  note,  or  the  transaction  will  be  usurious ;  that, 
as  between  the  maker  and  the  payee,  the  note  is  without  con- 
sideration and  void  in  the  hands  of  the  payee,  and  becomes  valid 
only  upon  being  negotiated  to  a  bona  fide  purchaser,  and  hence 
a  party  who  buys  an  accommodation  note  before  it  has  been  used 

Ct.   301;    Whaley  v.   Mort.   Co.,   74  Bank    v.     Scott,    91    Va.    652,    22 

Fed.   Rep.  73,  20  C.   C.  A.   306,  42  S.  E.  487,  29  L.  R.  A.  827,  50  Am. 

U.  S.  App.  90;   Ditmas  v.  Sackett,  St.   Rep.   860;   May  v.   Campbell,   7 

92  Hun    (N.  Y.),  381,  36  N.  Y.  S.  Humph.  (Tenn.)  450;  Salt  Marsh  v. 

690.  Bank,  17  Ala.  761;  French  v.  Grin- 

2.  Fowler  v.  Trust  Co.,  141  U.  die,  15  Me.  163;  Nichols  v.  Fearson, 
S.  385,  12  S.  Ct.  8;  Whaley  v.  7  Pet.  (U.S.)  103;  Mun  v.  Commis- 
Mortg.  Co.,  74  Fed.  Rep.  73,  20  C.  sion  Co.,  15  Johns.  (N.  Y.)  43; 
C.  A.  300,  42  U.  S.  App.  90.  Jackson  v.  Travis,  4^  Minn.  438,  44 

3.  Stephens  v.  Olson,  62  Minn.  N.  W.  316;  Claflin  v.  Boorum,  122 
295,  64  N.  W.  898;  Cronin  v.  Olson,  N.  Y.  385,  25  N.  E.  360;  Rodecker 
60  Minn.   534,  63  K   W.   108.  v.    Littauer,    59    Fed.    Rep.    857,    8 

4.  Robinson   v.   Smith,   62  Minn.  C.  C.  A.  320,  19  U.  S.  App.  455. 
62,   64  N.   W.  90;   Lynchberg  Nat. 

232 


Cli.    G         AGREEMENTS   lA'    VIOLATION'    0¥   STATUTE.         §§  212-214: 

for  any  business  purpose  stands  in  the  same  situation,  in  re- 
spect to  the  defense  of  usury,  as  if  he  were  the  payee  named 
therein,  and  this  though  he  had  no  knowledge  that  the  note  was 
accommodation  paper,  and  supposing  it  to  be  business  paper." 
But  the  better  rule  is  that  the  defense  of  usury  cannot  be  set  up 
against  the  purchaser  of  an  accommodation  note,  taken  at  a 
greater  rate  of  discount  than  legal  interest,  unless  such  pur- 
chaser has  knowledge  of  tlie  character  of  the  paper.^  So,  where 
one  buys  an  accommodation  note  of  the  payee,  not  knowing 
that  it  was  accommodation  paper,  but  supposing  that  it  was 
already  a  valid  subsisting  security  in  the  hands  of  the  payee,  the 
transaction  is  not  usurious,  though  a  greater  discount  was  al- 
lowed than  legal  rate.' 

§  213.  Taking  personal  property  as  interest. —  Usury  can 
taint  a  contract  where  personal  property  is  taken  as  interest, 
instead  of  money.  So  where  a  lender  receives  money  or  other 
valuable  thing,  in  any  greater  sum  or  value  for  a  loan  than  the 
legal  rate,  which  he  accepts  as  interest,  it  will  render  the  con- 
tract usurious.^  And  this  is  so  whether  the  property  is  taken 
for  the  purpose  of  evading  the  usury  law  or  not.^ 

§  214.  Cash  and  credit. —  A  party  may  take  a  less  amount  for 
property  where  cash  is  paid  than  when  he  sells  on  credit,  and 
this  will  not  amount  to  usury.     Hence,  when  a  note  is  given  for 

S.Williams    v.    Banks,    11    Md.  Jackson  v.  Fassitt,  33  Barb.  (N.  Y.) 

198;    Corcoran   v.    Bowers,    6    Ohio  645;    Middletown    Bank   v.   Jerome, 

St.   19;  Sylvester  v.  Swain,  3  Allen  18  Conn.  488;   Humphrey  v.  Clark, 

(Mass),    134;    Clark    v.   Sisson,   22  27    Conn.   381;    Dickerman   v.   Day, 

N.  Y.  312;  Carlisle  V.  Hill,  16  Aia.  31    Iowa,    444,    7    Am.    Rep.    156; 

398;   Holmes  v.  Williams,  10  Paige  Holmes  v.  Bank,  53  Minn.   350,  55 

(N.  Y.),  326,  40  Am.  Dec.  250  and  N.  W.  555. 

note;    Powell   v.  Waters,   17   Johns.  7.  Holmes  v.  Bank,  53  Minn.  350, 

(N.   Y.)    176.  55  X.  W.  555. 

6.     Sherman  v.  Biackman,  24  III.  1.  Sapp  v.  Cobb,  60  Ark.  367,  30 

347;   Otto  V.  Durege,  14  Wis.  571;  S.  W.   349. 

Gaul  V.  Willis,  26  Pa.  St.  257;  Ram-  2.  Cummins    v.    Wire,    2    Halst. 

say   V.    Clark,    4    Humph.     (Tenn.)  Ch.    (N.  J.)    73;   Low  v.   Prichard, 

244,  40  Am.   Dec.   645;    Whitwarth  36   Vt.    183;    Voorhis   v.    Staed,   63 

V.     Adams,    5    Rand.     (Va.)     333;  Mo.  App.  370. 

233 


§§    214-216  CONTRACTS    IN    VIOLATION    OF    LAW.  Oh.    6 

the  price  of  goods  purchased  on  a  credit,  and  the  rate  is  more 
than  legal  interest,  but  this  method  was  adopted  solely  as  a 
means  of  expressing  a  difference  between  cash  and  credit  pric© 
of  the  goods,  there  is  no  usury.^  If  what  is  called  interest,  or 
what  is  aimed  at  on  the  basis  of  a  certain  rate  of  interest,  is  in 
fact  a  part  of  the  purchase-money  or  price  of  the  article,  as, 
for  instance,  land,  and  not  a  mere  cover  for  a  loan  or  for  the 
forbearance  of  money,  it  is  not  usurious,  but  is  as  really  a  part 
of  the  purchase-price  for  the  land  as  is  the  prnicipal  sum.^  It 
is  neither  a  present  loan,  nor  is  it  a  forbearance  in  respect  to 
some  debt  previously  existing,  but  is  a  part  of  the  contract  price 
of  the  thing  sold.^ 

§215.  In  purchase  price  of  land. —  A  stipulation  in  a  note 
for  the  purchase-money  of  land  calling  for  more  than  legal  rate 
is  usurious.^  But,  in  the  purchase  of,  if  the  vendee  agrees  to 
pay  as  part  of  the  purchase  price,  a  rate  of  interest  on  the  de- 
ferred payments  in  excess  of  the  legal  rate,  the  contract  is  not 
usurious.^  And  so,  where  there  is  an  advance  in  the  cash  price 
of  land,  because  credit  was  given,  this  is  not  usury,  the  advance 
being  part  of  the  consideration,  and  the  vendee  executing  his 
notes  for  the  same.^  This  was  a  sale  of  land,  where  the  vendor 
was  willing  to  sell  for  so  much  at  a  cash  valuation,  or  for  so  much 
on  credit. 

§  216.  Bonus  for  consideration  of  making  the  loan. —  A 
bonus  paid  by  the  borrower  to  the  lender  of  money  for  making  a 

1.  First  Nat.  Bank  v.  Mann,  94  4.  People's  Bank  v.  Jackson,  43 
Tenn.  17,  27  S.  W.  1D15,  27  L.  R.  A.  S.  Car.  86.  20  S.  E.  786,  27  L.  R.  A. 
561  and  note,  45  Am.  St.  Rep.  696;  569  and  note,  49  Am.  St.  Rep. 
Cutler  V.  Wright,  22  N.  Y.  427.  823. 

2.  Swayne  v.  Riddle,  37  W.  Va.  5.  Reger  v.  O'Neal,  33  W.  Va. 
291,  16   S.  E.  512.  159,   10  S.  E.  375,  6  L.  R.  A.  427; 

3.  Hogg  V.  Ruffner,  1  Black  (U.  Dykes  v.  Bottoms,  101  Ala.  390,  13 
S.),  115;  Crawford  v.  Johnson,  11  So.  582;  Swayne  v.  Riddle,  37  W. 
Ind.     258.     See,     also,     Primley    v.  Va.  291,  16  S.  E.  512. 

Shirk.    60   111.   App.   312;    Saxe   v.  6.  Dykes    v.    Bottoms,    101    Ala. 

Womack,   64  Minn.    162,  66  N.   W.  390,  13  So.  582.     See.  also,  Jackson 

269;    Hawley   v.    Kountze,    6    App.  v.  Morris,  29  S.  W.  435,  16  Ky.  L. 

Div.  217,  39  N.  Y.  S.  897.  R.  684. 

234 


Ch.  6       AGREEMENTS    IN    VIOLATION    OF    STATUTE.       §§  216,  21Y 

loan  may  make  the  transaction  usurious.  And  the  bonus,  in 
computing,  for  the  purpose  of  determining  whether  the  loan  is 
usurious,  is  to  be  deducted  as  of  the  date  when  it  is  payable.  If 
payable  at  the  time  of  the  loan,  it  is  to  be  deducted  from  the 
principal  as  of  the  date  of  the  loan,  and  the  remainder,  or  what 
the  borrower  receives  and  retains,  is  to  be  taken  as  the  basis 
for  computation.^  So  where  part  of  the  money  loaned  is  with- 
held, the  borrower  paying  interest  from  the  time  the  transaction 
took  place,  it  is  usury,  if  it  resulted  in  paying  more  than  legal 
interest.^ 

But  the  mere  fact  that  a  note  is  given  for  an  amount  in  ex- 
cess of  that  actually  due  does  not  render  the  note  usurious.^  And 
an  agreement  to  pay  a  per  cent,  quarterly  or  otherwise  for  the 
extension  of  time  for  the  payment  of  a  loan  in  addition  to  the 
legal  rate  of  interest  thereon,  is  usurious  notwithstanding  the 
increased  interest  is  called  "bank  commission."  *  But  where 
there  is  no  time  set  for  payment,  a  deduction  of  a  greater  rate 
than  the  legal  interest  is  not  usurious.^  And  when  it  is  not  a 
loan  a  deduction  is  not  usurious.^ 

In  general,  if  the  lender  exacts  a  bonus  for  loaning  the  money, 
besides  taking  the  full  legal  rate,  it  is  usury.'' 

But  a  bonus  paid  by  a  borrower  to  his  own  agent  for  procur- 
ing a  loan  is  no  part  of  the  sum  paid  for  the  loan,  and  is  not 
usury,  notwithstanding  the  lender  takes  full  legal  interest.* 

§  217.  Antedating  a  note — Interest  payable  in  advance. — 

!N^o  device  to  cover  up  usury  will  avail.    Thus,  when  parties  con- 

1.  Phelps  V.  Montgomery,  60  6.  Meaker  v.  Fiero,  145  N.  Y. 
Minn.  303,  62  N.  W.  260;  Smith  v.       165,  39  N.  E.  714. 

Parsons,   55   Minn.   520,   57    N.   W.  7.  Hewitt  v.  Dement,  57  111.  510; 

311;   Anderson  v.  Smith   108  Mich,  Walter  v.  Foutz,  52  Md.  147;  Fan- 

69,  65  N.  W.  615.  ning  v.  Dunham,  5  Johns.  Ch.    (N. 

2.  East  River  Bank  v.  Hoyt,  29  Y.)  122;  Harris  v.  Wicks,  28  Wis. 
How.  Pr.  280,  32  N.  Y.  119.  198;      Stack     v.     Sperry,     6     Lea 

3.  Minneapolis  Harvest  Works  v.  (Tenn.),  411,  40  Am.  Rep.  47;  Row- 
Kaessner,  41  Neb.  710,  60  N.  W.  8.  land  v.  Bull,  5  B.  Mon.    (Ky.)   146. 

4.  Bowdoin  v.  Hammond,  79  Md.  8.  Goodwin  v.  Bishop,  145  HI. 
173,  28  A.  769.  421,  34  N.  E.  47:  Dryfus  v.  Burnes, 

5.  Philadelphia  v.  Kelly,  166  Pa.  53  Fed.  Rep.  410. 
St.  207,  31  A.  47. 

235 


§§    217-219  CONTRACTS    IN    VIOLATION    OF    LAW.  Cll.     6 

tract  for  a  loan  of  money  at  the  highest  rate  of  interest,  and 
the  note  is  made  to  bear  interest  from  date  and  is  dated  at  a 
time  prior  to  that  when  the  money  is  paid  to  the  borrower,  as 
a  device  to  cover  usnry,  the  transaction  is  tainted  with  usury.^ 
But  where  the  loan  is  transacted  through  the  mails,  and  a  rea- 
sonable time  transpires  between  the  date  of  the  execution  of 
the  papers  and  their  final  acceptance,  there  is  no  usury  because 
the  borrower  did  not  have  the  money  at  the  date  of  the  papers.^ 
And  if  the  delay  is  caused  by  the  borrower's  own  negligence, 
the  contract  is  not  usurious  because  the  money  is  not  paid  at 
the  date  of  the  contract.^ 

The  mere  payment  of  interest  in  advance  is  not  necessarily 
usurious  ;*  but  an  arrangement  to  pay  interest  in  advance  may 
be  such  as  to  be  usurious.^ 

§  218.  Hiring  or  renting  securities. — A  contract  by  which  a 
party  lends  United  States  bonds,  and  the  borrower  agrees  to 
pay  over  to  the  owner  the  interest  paid  the  government  thereon, 
and  a  per  cent,  in  addition,  is  not  usurious.  Such  a  contract  is 
merely  one  of  renting  or  hiring,  and  is  as  legitimate  as  will  be 
the  hiring  of  a  horse  or  renting  of  a  house,  with  the  agreement 
that  the  party  may  pledge  or  sell,  but  at  the  same  time  under- 
taking, with  security,  the  return  of  the  property  in  kind  to  the 
original  owner,  or  account  for  its  value.  ^ 

§  2ig.  Building  and  loan  association. — A  building  and  loan 
association  is  an  organization  created  for  the  purpose  of  accumu- 
lating a  fund  by  monthly  subscription  or  savings  of  its  mem- 
bers, to  assist  in  building  or  purchasing  for  themselves  real 
estate  by  loaning  to  them  the  requisite  money  from  the  funds 
of  the  society  upon  good  security,     l^early  every  State  in  the 

1.  Vail  V.  Van  Doren,  45  Neb.  inson,  35  S.  W.  275,  18  Ky.  L.  R. 
450,  63  N.  W.  787.  78. 

2.  Daley  v.  Investment  Co.,  43  5.  Hiller  v.  Ellis,  72  Miss.  701, 
Minn.  517,  45  N.  W.  1106.  18    So.    95,    41    L.    R.    A.    707    and 

3.  Rose  V.  Munford,  36  Neb.  148,  note. 

54  N.  W.  129.  6.  Marshall  v.  Riee,  85  Tenn.  502, 

4.  Warren  Deposit  Bank  v.  Rob-       3  S.  W.  177. 

236 


Ch.  6  AGREEMENTS    IN    VIOLATION    OF   STATUTE.  §    219 

Union  has  a  general  statute  relating  to  the  incorporation  of 
such  associations,  which  statutes  generally  differ  in  some  de- 
gree. But  these  associations  are  not  generally  subject  to  the 
usury  laws  by  reason  of  excess  of  premiums  contracted  to  be 
paid  by  their  members  to  them,  or  loans  to  them,  over  the  rate 
of  interest  permitted  by  law.^  But  to  entitle  mutual  building 
and  loan  associations  to  the  benefit  of  this  exemption  from  the 
usury  laws,  they  must  conduct  their  business  in  good  faith,  and 
loan  their  funds  only  to  bona  fide  members.  They  cannot  loan 
their  funds  to  strangers,  upon  usurious  terms ;  otherwise  they 
would  become  simply  associations  of  legalized  usurers,  availing 
themselves  of  the  privileges  and  exemptions  of  the  statute,  in- 
tended only  for  strictly  mutual  building  and  loan  associations. 
The  sale  of  stock  may  be  a  mere  cover  for  usury.^  And  when 
they  are  so  conducted  that  the  borrower's  contract  requires  of 
him  only  lawful  interest,  it  is  not  usury.^ 

Usury  cannot  exist  between  the  parties  bearing  one  to  another 
the  intimate  relation  existing  between  members  of  a  building 
and  loan  association.'*  Such  loans  are  not  rendered  usurious  by 
a  premium  which  each  borrower  agrees  to  pay  for  the  loan  since 
such  premium  is  neither  a  prepayment  of  interest  nor  a  deduc- 
tion of  money  belonging  to  the  member,  but  merely  represents 
the  agreed  discount  of  the  future  dividends  of  his  share  of 
stock.  ^ 

When  there  is  actual  usury  in  the  transaction,  the  association 
is  responsible  like  other  parties.® 

1.  Hawkins    v.     Association,    96  2.  City   Loan   Co.   v.   Cheney,   61 

Ga.  206,  22  S.  E.  711;   Goodrich  v.  Minn.  83,  63  N.  W.  250. 

Association,   96   Ga.   803,   22   S.   E.  3.  Natches   Build.  &  Loan   Asso. 

585;    Central   Build.  &  Loan  Asso.  v.  Shields,  71  Miss.  63,  15  So.  743. 

V.   Lampson,   60   Minn.   422,   62   N.  See,   also,   Granite  State   Provident 

W.   544.   See,  also,  Hensel  v.   Asso-  Association    v.    Monk     (N.    J.),    30 

ciation,  85  Tex.  215,  20  S.  W.  116;  At.  Rep.  872. 

International   Build.   &  Loan   Asso.  4.  Conservative    Build.    &    Loan 

V.   Abbott,   85   Tex.   220,   20   S.   W.  Asso.  v.  Cady,   55   111.  App.   469. 

118;  Reeve  v.  Association,  56  Ark.  5.  Sullivan     v.     Association,    70 

335,  19  S.  W.  917,  18  L.  R.  A.  129  Miss.      94,    12   So.   590;    Red   Bank 

and  note;   Succession  of  Latchford,  Mut.  Build.  &  Loan  Asso.  v.  Patter- 

42  La.  Ann.  529,  7  So.  628.  son,  27  N.  J.  Eq.  223. 

6.  Henderson  Build.  &  Loan  Asso. 

237 


§§    220-222  CONTRACTS    IN    VIOLATION    OF    LAW.  Oh.    6 

§  220.  Building  associations  must  keep  within  the  statute. — 
A  corporation  which  makes  its  loans  to  members  in  the  approved 
form  of  building  association  loans,  but  whose  aims  and  nature 
do  not  bring  its  property  within  the  statute  as  a  building  as- 
sociation, is  not  allowed  to  enforce  reservations  lawfully  per- 
mitted to  such  institutions.^  And,  hence,  the  transaction  be- 
tween a  quasi  building  and  loan  association  and  its  borrowing 
stockholder  is  simply  a  loan,  and  is  usurious,  where  he  is  liable, 
under  certain  circumstances,  to  pay  more  than  the  amount 
loaned  and  legal  interest.^ 

§  221.  Premiums  and  exchange.—  The  sale  of  securities  at  a 
premium  cannot  subject  the  party  to  an  action  to  recover  back 
the  premium  on  the  ground  of  usury ;  whether  the  premium  was 
computed  in  the  contract  of  sale  at  a  certain  percentage  in 
excess  of  the  legal  rate  for  the  time  past,  or  stated  at  a  gross 
sum,  or  as  compound,  is  immaterial.^  The  payment  of  exchange 
is  not  usury,  unless  it  appears  that  this  allowance  was  a  mere 
device  on  the  part  of  the  mortgagee  to  evade  the  usury  laws.^ 
And  paying  premium  on  gold  in  buying  an  exchange  to  pay  a 
mortgage  held  in  a  foreign  country,  where  gold  is  the  basis  of 
currency,  is  not  usurious.^ 

§  222.  Compound  interest. —  The  law,  as  a  general  rule,  will 
not  allow  the  recovery  of  compound  interest.  There  are  two  ex- 
ceptions to  this  rule :  1.  In  relation  to  interest  bearing  coupons 
attached  to  the  principal  note  or  other  securities  for  the  pay- 
ment of  money.     Such  coupons,  when  payable  to  bearer,  have, 

V.  Johnson,  88  Ky.  191,  10  S.  W.  87,  St.   67;   Kupfert  v.  Association,  30 

3  L.  R.  A.  289  and  note;   Burling-  Pa.  St.  465;  Rhoads  v.  Association, 

tonMut.L.  Asso.  v.  Heider,  55  Iowa,  82  Pa.  St.   180. 

424,  5  N.  518,  7  N.  686;  City  Loan  8.  Meroney    v.    Association,    116 

Asso.  V.  Gallagher,  25  Ohio  St.  208.  N.  Car.  882,  21   S.  E.  924,  41  Am. 

See,  also,  Southern  Building  &  Loan  St.  Rep.  841. 

Asso.  V.  Harris,  98  Ky.  41,  32  S.  W.  1.  Culver  v.  Bigelow,  43  Vt.  249. 

261;     United    States,    etc.    Co.    v.  2.  Williams    v.    Hance,    7    Paige 

Scott,  98  Ky.  695,  S4  S.  W.  235.  (N.  Y.),  581. 

7.  Williams    v.    Association,    45  3.  Oliver  v.  Shoemaker,  35  Mich. 

Md.   546;    Jarrett   v.   Cope,   68   Pa.  464. 

238 


CJi.  G       AGREEMENTS    IX     VlOLATIOiS     OF    STATUTE,        §§  223-224 

by  mercantile  iisuage,  legal  effect  of  promissory  notes.  The 
interest  of  such  coupons  is  not  compounded  indefinitely.  2,  In 
case  the  interest  has  become  due  and  remains  unpaid,  the  debtor 
may  then  agree  to  have  the  accrued  interest  added  to  the  prin- 
cipal and  it  becomes  interest  bearing.^  When  the  borrower  has 
compounded  the  interest  a  promise  by  him  to  pay  such  com- 
pound interest  is  valid  if  supported  by  a  consideration.^  But 
many  courts  hold  that  the  adding  of  the  interest  every  year  to  the 
principal,  is  usury.^ 

§  223.  Statutory  Provisions. —  The  statutes  of  many  States 
control  as  to  compounding  interest,  and  must  be  consulted.  In 
Arkansas,  when  a  payment  falls  short  of  paying  the  interest 
due  at  the  time  of  making  such  payment,  the  balance  of  interest 
must  not  be  added  to  the  principal.'*  In  California  the  interest, 
by  written  agreement,  if  not  paid  when  due,  may  be  added  to 
the  principal  f  in  Louisiana  it  is  otherwise.^  In  Idaho  compound 
interest  is  not  allowed  to  be  contracted  for  in  the  original  agree- 
ment.'    Interest  cannot  be  compounded  in  Minnesota.^ 

§  224.  Interest  coupons. —  Money  loaners  now  generally  take 
notes  with  coupons  attached  for  the  payment  of  a  specified  sum 
at  certain  periods,  and  if  not  paid  at  the  time  stated,  the  amount 
stated  in  the  coupon  draws  interest  from  the  date  of  its  ma- 
turity.^    Such  coupons  are  in  effect  promissory  notes  and  draw 

1.  Bowman  v.  Neely,  151  111.  37,  v.  Hill,  67  N.  Y.  162,  23  Am.  Rep. 
37  N.  E.  840;  Leonard  v.  Williams,        99- 

23  111.  377;   Stickney  v.  Moore,  108  3.  Waring  v.  Cunliff,   1  Ves.  Jr. 

Ala.    590,    19    So.    76.      See,    also,  99;    Chambers   v.    Goldwin,   9   Ves. 

Gross   V.   Coffey,   111   Ala.  468,   20  254;    Thornbill    v.    Evans,    2    Atk. 

So.   428;    Stewart  v.   Petree,  55  N.  330;   Leith  v.   Irwin,   1   Myl.  &  K. 

Y.  621,  14  Am.  Rep.  352;  Crider  v,  277. 

Association,  89  Tex.  597,  35  S.  W.  4.  Dig.  of  Stat.  1884,  sec.  4738. 

1047;  Scott  V.  Saflford,  37  Ga.  384;  5.  Civil  Code,   1885,  sec.   1919. 

Columbia  County  v.  King,   13   Fla.  6.  Rev.  Code,  1870,  art.  1939. 

251;  Hill  v.  Meeker,  23  Conn.  592;  7.  Rev.  Stat.  1887,  see.  1265. 

Lewis  Invest.  Co.  v.  Boyd,  48  Neb-  8.  Laws  of  1879,  ch.  66. 

604,  67  N.  W.  456.  9.  Columbia  County  v.  King,   13 

2.  Tillotsson  v.  Nye,  88  Hun  (N.  Fla.  451;  Gelpcke  v.  Dubuque,  1 
Y.),   101,  34  N.  Y.  S.  606;   Young  Wall.    (U.  S.)    175,  206;  Harper  v. 

239 


§§    224-226  CONTRACTS    IN    VIOLATION    OF    LAW.  Oh.    6 

interest  after  maturity.^"  Hence,  overdue  coupons  bear  interest 
after  maturity  at  the  lawful  rate  of  interest,  and  taking  such 
interest  is  not  usury. ^^  However,  interest  upon  interest,  as  rep- 
resented by  coupons,  must  be  allowed  or  refused,  as  may  be 
required  by  the  statute  of  the  State.^^ 

§  225.  Recovering  back  usurious  interest. —  In  many  States, 
money  paid  as  usurious  interest  is  allowed  to  be  recovered  back 
on  the  theory  that  the  law  regards  the  payment  as  made  under 
duress.^  But  the  general  rule  is  that  money  voluntarily  paid, 
with  full  knowledge  of  all  the  material  facts,  cannot  be  recov- 
ered back,  even  though  made  upon  illegal  consideration,  which 
the  law  will  not  enforce.^  In  Illinois  an  agreement  after  in- 
terest is  due  to  make  it  a  principal  sum  does  not  render  the 
transaction  usurious;^  but  in  a  usurious  contract  the  debtor  is 
entitled  to  have  all  payments  on  account  of  usury,  applied  in 
diminution  of  the  principal  unpaid.* 

§  226.  Computation  of  interest — Compounding. — Taking  the 

legal  rate  of  interest  in  advance  is  not  usury. ^     But  where  the 

Ely,  70  111.   581;    Hollingsworth  v.  321;    Stickney  v.   Moore,    108   Ala. 

Detroit,  3  McLean,  C.  C.  472.     See,  599,  9  So.  76. 

also.  Bowman  v.  Neely,  151  111.  37,  1.  Albany   v.    Abbott,    61    N.    H. 

37  N.  E.  840.  158. 

10.  Miller  v.  Railroad  Co.,  40  Vt.  2.  Caldwell  v.  Wentworfn,  14  N. 
399,   94  Am.  Dec.  413;    Gelpcke  v.  H.  431. 

Dubuque,    1    Wall.     (U.    S.)     175;  3.  Haworth  v.  Huling,  87  111.  23; 

Hollingsworth    v.    Detroit,    3    Mc-  Gilmore  v.  JBissell,   124  111.  488,   17 

Lean,  C.  C.  472;   Mercer  County  v.  N.  E.  758;  Drury  v.  Wolfe,  134  111. 

Hubbard,   45    111.    139;    Johnson   v.  294,  25  N.  E.  626;   Thayer  v.  Star 

Stark  County,  24  EL   75;   Bennson  Mining  Co.,  105  111.  540;  McGovern 

V.    Savage,    130   111.   352,   22   N.   E.  v.   Ins.   Co.,   109   111.   151;    Bowman 

838.  V.  Neely,  151  111.  37,  37  N.  E.  840. 

11.  United  States  Mortg.  Co.  4.  Fowler  v.  Trust  Co.,  141  U.  S. 
V.  Sperry,  138  U.  S.  313,   11  S.  Ct.  384,  408,  411,  12  S.  Ct.  8. 

321.  5.  Bank  v.  Cook,  60  Ark.  288,  46 

12.  Ohio  V.  Frank,  103  U.  S.  697;  Am.  St.  Rep.  171  and  note,  30  S.  W. 
Phinney  v.  Baldwin,  16  111.  108,  61  35,  29  L.  R.  A.  761  and  note;  Polen 
Am.  Dec.  62;  Chicago  v.  Allcock,  86  v.  Palmer,  53  111.  App.  223;  Hoyt 
111.  384;  United  States  Mort.  Co.  v.  Pawtucket  Inst.,  110  HI.  390; 
V.  Sperry,  138  U.  S.  313  ,11  S.  Ct.  Bloomer  v.  Mclnerney,  30  Hun   (N. 

240 


Cb.  6       AGREEMENTS    IN    VIOLATION    OF    STATUTE.       §§  226-228 

accrued  annual  interest  is  added  to  the  principal  and  then  on 
that  amount  the  interest  is  paid  in  advance,  that  is  usury.®  But 
the  adding  in  to  the  principal  the  overdue  interest,  and  giving 
a  note  for  the  whole  amount,  without  taking  interest  in  ad- 
vance upon  the  whole,  is  not  usury  f  but  this  matter  is  some- 
times regulated  by  statute,  which  must  be  consulted. 

§  227.  Taxes  and  expenses. —  An  agreement  to  pay  taxes  on 
the  mortgaged  debt  in  addition  to  the  highest  legal  rate  is  not 
usurious.^  So,  the  payment  by  the  borrower,  in  addition  to  full 
legal  interest,  of  the  costs  of  drawing  the  mortgage  and  examin- 
ing the  title  to  the  security  does  not  constitute  usury.^  Where  a 
note  has  been  withheld  or  antedated  in  order  to  evade  the  usury 
law,  this  is  usury. ^'^  But  if  the  completion  of  the  contract  had 
been  caused  by  tlie  delay  of  the  mail,  then  it  would  not  be  usury.^^ 

§  228.  Commission  and  discount. —  An  agent  of  the  borrower 
may  take  a  commission  for  loaning  money,  from  the  borrower, 
where  the  loaner  is  not  interested,  the  legal  rate  of  interest  be- 
ing the  highest  allowed;^  but  an  executor  cannot  be  such  an 

Y.),    201:    Mitchell    v.    Lyman,    77  1.  Dreyer  v.  Goldy,   62  111.  App. 

111.  525.  347;   Stansell  v.  Trust  Co.,  96  Ga. 

6.  First  Nat.  Bank  v.  Davis,  108  207,  22  S.  E.  898 ;  New  England 
111.  633.  Mort.  Co.  v.  Baxley,  44  S.  Car.  81, 

7.  McGovern  v.  Ins.  Co..  109  111.  21  S.  E.  444;  Gray  v.  Van  Blarcom, 
151.  29  N.  J.  Eq.  454;   Spring  v.  Reed, 

8.  Banks  v.  McClellan,  24  Md.  28  N.  J.  Eq.  345;  Van  Wyck  v. 
62,  87  Am.  Dec.  594.  Watters,    81    N.    Y.    352;    Guggen- 

9.  Kidder  v.  Vandersloot,  114  111.  heimer  v.  Grieszler,  81  N.  Y.  293; 
133,  28  N.  E.  460;  Ammor.dson  v.  Rogers  v.  Buckingham,  33  Conn.  81 ; 
Ryan,  111  111.  506;  Ellenbogen  v.  Eslava  v.  Cranipton,  61  Ala.  507; 
Griflfey,  55  Ark.  268,  18  S.  W.  126;  Phillips  v.  Roberts,  90  111.  952;  New 
Daley  v.  Association,  43  Minn.  517,  England  Mort.  Co.  v.  Gay,  33  Fed. 
45  N.  W.  1100;  Dayton  v.  Moore,  Rep.  636;  Estevez  v.  Purdy,  66  N. 
30  N.  J.  Eq.  543.  Y.   446;    Whaley   v.    Mort.    Co.,    74 

10.  Bar r  V.  Church  (N.  J.),  10  At.  Fed.  Rep.  73,  20  C.  C.  A.  306,  42 
Rep.  287;  Vail  v.  VanDoren,  45  U.  S.  App.  90;  Jordan  v.  Hum- 
Neb.  450,  63  N.  W.  787.  phrey,    31    Minn.    495,    18    N.   450; 

11.  Daly  V.  Invest.  Co.,  43  Minn.  Board  v.  Millword,  51  Ark.  548,  11 
517,  45  N.  W.   1100.  S.    W.    88;    Pass    v.    Security    Co., 

241 


§§  228,  229 


CONTRACTS    IN    VIOLATION    OF    LAW. 


Oh.  6 


agent.^  When  the  agent  has  the  general  oversight  of  his  prin- 
cipal's money,  and  loans  it  without  any  special  authority,  and 
in  soich  sums  and  at  such  times  as  he  pleases,  and  is  only  re- 
stricted as  to  the  least  amount  of  interest  to  be  taken,  if  the 
agent  exacts  usury  upon  his  loans  by  taking  full  legal  rate  of 
interest  and  also  a  commission,  the  principal  is  affected  and  the 
transaction  is  usurious.^ 

An  agent  generally  may  loan  money  and  take  commission 
where  there  is  no  arrangement  to  this  effect  between  the  agent 
and  the  lender.'*  But  when  the  principal  ratifies  the  agent's 
usurious  contract,  then  the  principal  becomes  affected  with  the 
usury  and  must'  abide  the  consequences.^ 

Even  the  lender  himself  may  charge  for  extra  services  and 
expenses  rendered  or  incurred  by  him  in  good  faith,  for  to 
constitute  usury,  the  charge  must  be  for  the  loan  or  forbearance.* 


§  229.  Attorney's  fees. —  Generally  a  stipulation  in  a  mort- 
gage or  a  note  for  the  payment  of  attorney's  fees  in  addition  to 


66  Miss.  365,  6  So.  239;  Hughes 
V.  Griswold,  82  Ga.  299,  9  S.  E. 
1092;  Telford  v.  Garrells,  132  III. 
550,  24  N".  E.  573;  Ginn  v.  Security 
Co.,  92  Ala.  135,  8  So.  388;  Davis 
V.  Sloman,  27  Neb.  877,  44  N.  W. 
41 ;  Weems  v.  Mort.  Co.,  86  Ga.  760, 
13  S.  E.  89. 

2.  Landis  v.  Saxton,  89  Mo.  375, 
1  S.  W.  359. 

3.  Payne  v.  Newcomb,  100  111. 
611;  Fowler  v.  Tiust  Co.,  141  U. 
S.  384,  12  S.  Ct.  8 ;  Banks  v.  Flint, 
54  Ark.  40,  14  S.  W.  709,  16  S.  W. 
477,  10  L.  R.  A.  459  and  note;  Hall 
V.  Maudlin,  58  Minn.  137,  59  N.  W. 
985,  49  Am.  St.  Rep.  492;  Horkan 
V.  Nesbit,  58  Minn.  287,  60  N.  W. 
132;  Bliven  v.  Lydecker,  130  N.  Y. 
102,  28  N.  E.  625;  Kemmitt  v. 
Adamson,  44  Minn.  121,  46  N.  W. 
327;  Stein  v.  Swenson,  44  Miun. 
218,  46  N.  W.  360. 


4.  Hoyt  V.  Pawtucket  Inst.,  110 
111.  390,  398;  Telford  v.  Garrells, 
132  111.  550,  554,  24  N.  E.  573;  San- 
ford  V.  Kane,  133  111.  199,  205,  24 
N.  E.  414,  8  L.  R.  A.  724,  23  Am. 
St.  Rep.  602 ;  Ginn  v.  Security  Co., 
92  Ala.  135,  8  So.  388;  May  v. 
Flint,  54  Ark.  573,  16  S.  W.  575; 
Weems  v.  Mort.  Co.,  86  Ga.  760,  13 
S.  E.  89. 

5.  Bliven  v.  Lydecker,  130  N.  Y. 
102,  28  N.  E.  625;  Hyatt  v.  Clark, 
118  N.  Y.  563,  23  N.  E.  89;  Hoyt 
V.  Thompson,  19  N.  Y.  207. 

6.  Dayton  v.  Moore,  30  N.  J. 
Eq.  543;  Atlanta  Min.  Co.  v. 
Gwyer,  48  Ga.  9;  Horton  v.  Thur- 
ber,  85  N.  Y.  530 ;  Matthews  v.  Coe, 
70  N.  Y.  239;  Ammondson  v.  Ryan, 
111  111.  506;  De  Forest  v.  Strong, 
8  Conn.  513;  Compare  Jackson  v. 
May.  28  111.  App.  305. 


242 


CJl.  6       AGREEMENTS    IN    VIOLATION    OF    STATUTE. 


229,  230 


legal  interest,  in  case  the  holder  is  compelled  to  sue,  does  not 
render  the  morti^age  or  note  usurious,^  provided  the  fee  is  rea- 
sonable.^ Attorney's  fees  are  not  allowed  in  all  the  States.  Ken- 
tucky, Ohio,  Michigan,  and  North  Carolina  hold  that  the  stipu- 
lation in  a  mortgage  for  attorney's  fees  is  void  as  against  public 
policy.^  It  is  generally  held  reasonable  attorney's  fees  may  be 
provided  for  in  case  the  mortgagee  has  to  foreclose  the  mortgage. 
Such  a  contract  of  itself  does  not  make  the  contract  usurious.* 
But  tlie  statute  cannot  be  avoided  by  any  shift  or  device  which 
may  be  resorted  to  by  the  parties,  in  order  to  cover  np  a  usuri- 
ous contract.^  But  a  provision  in  a  mortgage  for  the  "  expenses 
of  the  sale  "  does  not  include  attorney's  fees." 

§  230.  Sale  of  security — Innocent  purchaser. —  As  a  general 
rule  a  mortgage  once  issued  may  be  sold  without  affecting  an 
innocent  purchaser  in  any  of  the  consequences  of  taking  usuri- 
ous interest.^  The  mortgagee  may  sell  the  mortgage  at  a  dis- 
count before  taken,  if  it  be  not  a  plan  to  cover  up  usury.^    And 


1.  Williams  v.  Flowers,  90  Ala. 
136,  7  So.  439,  24  Am.  St.  Rep.  772 ; 
Fowler  v.  Trust  Co.,  141  U.  S.  384, 
408,  411,  12  S.  Ct.  1,  7,  8;  Siegel 
V.  Drumm,  21  La.  Ann.  8;  Weath- 
erly  v.  Smith,  30  Iowa,  131,  6  Am. 
Rep.  663;  Hunter  v.  Linn,  61  Ala. 
492 ;  Billingsbey  v.  Dean,  1 1  Ind. 
331;  Huling  v.  Drexell,  7  Watts 
(Pa.),  126;  American  Freehold 
Land-lNIortg.  Co.  v.  Whaley,  63  Fed. 
Rep.  743;  Mumford  v.  Tolan,  54 
111.  App.  471;  Smith  v.  Silvers, 
32  Ind.  321;  National  Bank  v. 
Danforth,  80  Ga.  55,  7  S.  E.  546: 
Barton  v.  Bank,  122  111.  352,  13  N. 
E.  503. 

2.  Hunter  v.  Linn,  61  Ala.  492; 
Clawson  v.  ]\Iunson.  55  111.  309. 

3.  Thomasson  v.  To\vnsend.  10 
Bush  (Ky.),  114,  19  Am.  Rep.  58; 
Dow  V.  Updike,  11  Neb.  95;  Rilling 
V.  Thompson,  12  Bush  (Ky.),  310; 
State  V.  Taylor,  10  Ohio,  378;  Tins- 


ley  V.  Harkins,  111  N.  Car.  346, 
16  S.  E.  325,  32  Am.  St.  Rep.  801; 
Van  Marter  v.  McMillan,  39  Mich. 
303;  Leavans  v.  Bank,  50  Ohio  St. 
591,  34  N.  E.  1089;  Williams  v. 
Rich,  114  N.  Car.  235. 

4.  Barton  v.  Bank,  122  111.  352, 
13  N.  E.  503;  Telford  v.  Garrels, 
132  111.  550,  24  N.  E.  573;  Clawson 
V.  Munson,  55  111.  394;  Mclntyre  v. 
Yates,  104  111.  491;  Haldeman  v. 
Ins.  Co.,  120  111.  390,  11  N.  E.  526. 

5.  Leonard  v.  Patton,  106  111.  99, 
104. 

6.  Thomas  v.  Jones,  84  Ala.  302, 
4  So.  270. 

7.  Jockson  V.  Travis,  42  Minn. 
438,  44  N.  W.  316;  Sickles  v.  Flan- 
agan, 79  N.  Y.  224;  Smith  v.  Cross, 
00  N.  Y.  549;  Dunham  v.  Cudlipp, 
94  N.  Y.  129;  Mix  v.  Ins.  Co.,  11 
Ind.  117. 

8.  Armstrong  v.  Freeman,  9  Neb. 
11,  2  N.  353. 


243 


§§    230',  231  CONTKACTS    IN    VIOLATION    OF    LAW.  Oh.    6 

a  corporation  may  sell  its  bonds  at  a  discount  and  not  violate 
the  law  as  to  nsury.^  Where  a  trust  deed  gives  power  to  sell  the 
property  for  any  amount  that  may  be  due  on  the  second  note,  a 
trustee  sale  is  not  rendered  invalid  by  the  existence  of  usury  in 
the  loan,  when  the  sum  for  which  the  land  is  sold  is  less  than 
the  amount  due  after  deducting  the  usurious  interest.  ^*^ 

A  purchaser  under  a  junior  mortgage  has  the  right  to  remove 
the  lien  of  the  prior  usurious  mortgage  by  discharging  only  so 
much  of  the  debt  secured  thereby  as  the  law  recognizes  as 
valid ;  and  this  right  is  not  defeated  by  a  conveyance  subse- 
quently made  by  the  mortgagor  to  the  prior  mortgagee. -^^ 

But  to  be  an  innocent  purchaser,  he  must  take  the  note  or 
security  in  the  regular  course  of  busines^^.^" 

§  231.  Absolute  sale  with  agreement  to  repurchase. — 
Usury  cannot  be  covered  up  by  a  pretended  sale  of  land  with  a 
lease  back  to  the  vendor.-^  So  when  land  is  sold  and  the  trans- 
action is  apparently  a  conditional  sale,  it  will  not  be  sustained  as 
such  unless  it  clearly  appears  that  it  is  not  a  scheme  to  cover 
usury.^ 

In  Georgia,  all  titles  to  property  made  as  a  part  of  a  usurious 
contract  are  void.  So  when  a  deed  is  infected  with  usury  it  is 
void  as  title.  And  if  void  as  title,  it  cannot  have  effect  as  an 
equitable  mortgage,  because  unless  title  passes  an  equitable  mort- 
gage is  not  created  by  the  conveyance  of  the  land.^ 

9.  Traders'  Nat.  Bank  v.  Wood-  Merklin,  65  Md.  579,  5  A.  544;  Mor- 
lawn  Manuf.  Co.,  90  N.  Car.  298,  3  rison  v.  Markham,  78  Ga.  161,  1  S. 
S.  E.  363.  E.  425. 

10.  Ammondson  v.  Ryan,  111  111.  2.  Gleason  v.  Burke,  20  N.  J.  Eq. 
506.                                                                   300. 

11.  Maloney  v.  Echart,  81  Tex.  3.  McLaren  v.  Clark,  80  Ga.  423, 
281,  16  S.  W.  1030.                                      7   S.   E.   230:    Broach  v.   Smith,  75 

12.  Freden  v.  Eichards.  61  Minn.  Ga.  159:  Morrison  v.  Markham,  78 
490,  63  N.  W.  1081;  Stephens  v.  Ga.  161,  1  S.  E.  4'25 :  Baggett  v. 
Olson,  62  Minn.  295,  64  N.  W.  898.       Trulock,   77   Ga.   369,  3   S.  E.   162; 

1.  Gaither  v.  Clark,  67  Md.  18,  Pope  v.  Marshall,  78  Ga.  635,  4  S. 
8   A.   740;    Grand   United   Order  v.       E.   116. 


244 


Ch.  G  AGREEMENTS    IN    VIOLATION    OF   STATUTE.  §    232 

§  232.  National  banks. —  It  is  the  general  law  that  national 
banks  may  reserve  and  receive  whatever  interest  is  allowed  by 
the  law  of  the  State  regulating  the  matter.^  So,  national  banks 
may  take  as  high  a  rate  of  interest  as  is  allowed  either  to  in- 
dividuals or  banks  of  issue  in  the  various  States  of  their  organi- 
zation.^ In  all  the  States  where  there  is  a  statute  fixing  the 
rate  of  interest,  the  only  limitations  upon  these  rights  must  be 
found  in  the  State  statutes.^  But  the  penalty  prescribed  by  the 
national  bank  statute  for  usurious  discounting  paper  by  na- 
tional banks,  is  exclusive,  and  that  imposed  by  State  statute 
cannot  be  applied  and  enforced.*  The  national  banking  law^ 
provides  that  the  party  paying  usurious  interest  to  a  national 
bank  may  recover  twice  the  amount  of  interest  paid ;  but  this 
rule  does  not  apply  to  discounting  negotiable  papers.  The  ac- 
tion to  recover  twice  the  amount  of  the  usury  must  be  com- 
menced within  two  years.  The  bank  may  apply  the  usurious  in- 
terest on  the  principal  of  the  note  unless  the  maker  has  applied 
it  on  the  interest,®  and  the  usury  is  retained  in  the  debt,  no  mat- 
ter how  many  renewals  have  been  made,  and  the  debt  may  re- 
cover twice  the  amount  of  all  the  interest  paid.'  And  jurisdic- 
tion is  vested  in  the  State  as  well  as  in  the  federal  court.^ 

1.  La  Dow  V.  Bank,  51  Ohio  St.  91  U.  S.  29;  Bank  v.  Pratt,  115 
234,  37  N.  E.  11;  Wiley  v.  Star-  Mass.  539,  15  Am.  Rep.  138;  Bank 
buck,  44  Ind.  298,  15  Am.  Rep.  235 ;  v.  Garlinghouse,  22  Ohio  St.  492, 
Newell  V.  Bank,  12  Bush  (Ky.),  10  Am.  Rep.  751;  Davis  v.  Randall, 
57;  Rockwell  v.  Bank,  4  Colo.  App.  115  Mass.  547;  Higley  v.  Bank,  26 
562,  36  P.  905.  Ohio  St.  75,  20  Am.  Rep.  759 ;  Flor- 

2.  National  Bank  v.  Bruhn,  64  ence  R.  R.,  etc.,  Co.  t.  Bank,  106 
Tex.  571,  53  Am.  Rep.  771;   Hinds  Ala.  364,  17  So.  720. 

V.  Marmolejo,  60  Cal.  229 ;  Farmers'  5.  Rev.  Stat.  U.  S.  section  5198. 

Nat.  Gold  Bank  v.  Stover,  60  Cal.  6.  Brown  v.   Nat.   Bank,   169  U. 

387;  Guild  v.  Bank,  4  S.  Dak.  566.  S.  41 G,  420,  18  S.  Ct.  390. 

57  N.  W.  499.  7.  Colgin  v.  Bank,  16  Tex.  App. 

3.  Rockwell  v.  Bank;  4  Colo.  346,  40  S.  W.  634;  Citizens'  Nat. 
App.  562,  36  P.  905.  Bank  v.  Domiell    (1904),  25  S.  Ct. 

4.  Barnet  v.  Bank,  98  U.  S.  555 ;  49. 

Stephens  v.  Bank,  111  U.  S.  197,  4  8.  Endres  v.  Bank,  66  Minn.  257, 

S.  Ct.  336,  337;   Bank  v.   Dearing,       68  N.  W.  1092. 


245 


§§    233,  234  CONTRACTS    IN    VIOLATION    OF    LAW.  Oil.     6 

§  233.  Mistake  in  taking  interest. —  Where  illegal  interest  is 
taken  by  mistake,  it  is  not  usury.  Thus,  where  interest  upon 
a  loan  was  computed  at  a  usurious  rate  and  included  in  the 
principal  of  a  promissory  note,  which  by  its  terms  bore  interest 
only  from  maturity,  if  it  appears  that  illegal  interest  was  taken 
by  mistake,  the  contract  is  not  usurious;'*  because  there  was 
no  intent  in  making  and  receiving  a  note  to  provide  for  the  pay- 
nient  of  the  illegal  rate  of  interest.^*' 

§  234.  Renewal  notes  and  mortgages. —  Every  renewal  not© 
given  for  a  usurious  loan  of  money  is  subject  to  the  defense  of 
usury  between  the  original  parties  and  purchasers  with  notice.^ 
And  where  a  new  note  is  given  at  the  maturity  of  an  old  one 
and  includes  interest  on  the  loan  to  date  at  a  usurious  rate,  the 
renewal  note  is  tainted  with  usury  though  the  original  note  was 
not  usurious.^  And  so  a  mortgage  which  is  given  to  secure  a 
pre-existing  debt,  which  is  tained  with  usury,  will  be  vitiated  by 
the  original  indebtedness.^  If  a  party  takes  a  renewal  mortgage 
without  knowledge  of  the  taint  of  usury  in  the  original,  he  will 
be  protected.*  But  it  is  not  usury  for  one  to  loan  money  to  a 
debtor  who  uses  it  in  paying  his  usurious  debt  to  his  creditor.^ 

9.  Brown  v.  Bank,  86  Iowa,  527,  Bank  v.  Orchard,  39  Neb.  485,  58 
53  N.  W.  410;  Garvin  v.  Linton,  62       N.  W.  144. 

Ark.   370,   35   S.  W.   430,  37   S.  W.  2.  McDonald    v.    Beer,    42    Neb. 

569.  437,  60  N.  W.  868 ;  Parsons  v.  Bab- 

10.  Tyler  on  Usury,   103;   Lloyd       cock,  40  Neb.  119,  58  N.  W.  726. 

V.  Scott,  4  Pet.   (U.  S.)   205;  McEl-  3.  Bell    v.    Lent,    24    Wend.    (N. 

Patrick  v.   Hicks,   21   Pa.   St.   402;  Y.)     230;    Berry    v.    Thompson,    17 

Price    V.    Campbell,    2    Call    (Va.),  Johns.     (N.    Y.)     436;    Vickery    v. 

110,    1    Am.    Dec.    535;    Smythe   v.  Dickson,  35  Barb.   (N.  Y.)   96.     See, 

Allen,    67    Miss.    146,    6    So.    627;  also,  McCraney  v.  Alden.   46  Barb. 

Bearce   v.    Barstow,   9   Mass.   45,   6  (N.  Y.)    272;   Cope  v.  Wheeler,  41 

Am.  Dec.   25;    Bevier  v.   Covell,   87  N.   Y.   303;   Exley  v.   Berryhill,   37 

N.  Y.  50;  Tyson  v.  Richard,  3  Har.  Minn.  182,  33  N.  W.  567. 

&  J.    (Md.)    109,  5  Am.   Dec.   424;  4.  Kilner  v.  O'Brien,  14  Him   (N. 

Gibson    v.    Stearns,    3    N.    H.    185;  Y.),   414;    Sherwood   v.   Archer,    10 

McFarland  v.  Bank,  4  Ark.  44,  37  Hun   (N.  Y.),  73;  Jenkins  v.  Lewis, 

Am.  Dec.  761;   Henry  v.  Sanson,  2  25   Kans.   479;    Coon  v.   Spicer,   65 

Tex.  Civ.  App.  150,  21  S.  W.  69.  N.  Car.  401. 

1.  McDonald  v.  Aufdengarter,  41  5.  Wilson  v.  Harvey,  4  Lans.   (N. 

Neb.  40,  59  N.  W.  762;  Exeter  Nat.  Y.)    507.      Sre,   also.    Hann   v.    De- 

246 


Cll.  6       AGREEMENTS     IX     VIOT.ATIO.N     OK    STATUTE.        §§  234-236 

And  notes  given  to  a  third  party  for  money  to  be  applied  in 
payment  of  other  notes  which  are  usurious  are  not  themselves 
usurious,®  provided  it  is  not  a  guise  to  cover  up  usuryJ 

§     235.    Contracts     having    an     independent     existence. — 

Where  one  of  several  and  independent  loans  is  usurious,  the 
taint  does  not  adhere  to  the  others,  though  all  were  between  the 
same  parties  at  the  same  time,  and  secured  by  the  same  mort- 
gage.« 

If  a  usurious  agreement  is  independent  of  the  loan  and  mort- 
gage, and  not  a  condition  of  the  loan,  and  capable  of  being  sus- 
tained without  reference  to  them,  either  as  a  sale  on  considera- 
tion or  as  a  gift,  it  may  be  enforced.^  iVnd  a  valid  mortgage 
is  not  affected  by  a  subsequent  usurious  agTeement.^*' 

Obligations  and  securities  having  an  independent  existence, 
and  free  from  usury,  are  not  affected  by  the  statute,  although 
the  subject  of  a  contract  tainted  with  usury.  A  valid  and  sub- 
sisting debt  is  not  destroyed  because  included  in  a  security  or 
made  the  subject  of  a  prohibited  contract.  Although  formally 
satisfied  and  discharged,  and  the  security  surrendered,  it  may 
be  revived  and  enforced  in  case  the  new  security  is  avoided.^^ 

§  236.  Evidence — Sufficiency. —  A  fair  preponderance  of  evi- 
dence is  only  necessary  to  establish  the  fact  of  usury.^^  But  the 
law  presumes  that  the  loan  was  not  usurious,  and  proof  that  a 

kater    (N.    J.).    20    At.    Rep.    657;  441.      See,   also,    Ciim   v.    Post,   41 

Hendrickson  v.  Godsey,  54  Ark.  155,  W.  Va.  397,  23  S.  E.  613. 
15  S.  W.  113;  Trible  v.  Nichols,  53  8.  Jackson  v.  May,   28   111.  App. 

Ark.  271,  13  S.  W.  796,  22  Am.  St.  305;      Crippen     v.     Heermance.     9 

Rep.  190.  Paige   (X.  Y.),  211. 

6.  Vaught  V.  Kider,  83  Va.  659,  9.  Gleason  v.  Burke,  20  N.  J. 
3  S.  E.   293,  5  Am.   St.   Rep.  285;  Eq.  300. 

Cottrell  V.  Southwick.  71  Iowa,  50,  10.  Allison  v.   Schmitz.   31   Hun 

32  N.  W.  22;   Trimble  v.  Thorson,  (X.  Y.),  106. 

80  Iowa,  246,  45  N.  W.  742  ;  Brown  11.  Patterson  v.  Birdsall,  64  N".  Y. 

V.   Bank,   86   Iowa,   527,   53   K   W.  294,    21    Am.    Rep.    609;    Smith   v. 

410.  Hollister,   14  X.  J.  Eq.   153. 

7.  Luekens   v.   Hazlett,  37   Minn.  12.  Phelps    v.    Montgomery,    60 

.Aiinii.  303,  62  X.  W.  260. 

247 


§§    236,  237  CONTRACTS    IN"    VIOLATION    OF    LAW.  Oil.    6 

bonus  or  commission  in  addition  to  the  highest  legal  rate  of 
interest  authorized  has  been  exacted  by  an  agent  of  the  prin- 
cipal does  not  raise  a  presumption  of  usury. ^^  But  where  a  con- 
tract is  tainted  with  usury  on  its  face,  it  will  take  clear  proof 
to  show  that  usury  was  not  intended.^* 

§  237.  Who  may  plead  usury. —  One  class  of  decisions  holds 
that  the  plea  of  usury  as  a  defense  is  personal  to  him  from 
whom  the  usury  has  been  exacted,  his  privies  in  blood,  estate  or 
contract,^  so  a  subsequent  purchaser  cannot  set  it  up.^  So,  one 
not  a  party  to  the  contract  cannot  attack  it  on  account  of  usury.^ 
But  where  several  persons  purchase  a  track  of  land  and  give 
their  joint  note  and  mortgage  for  the  purchase-money,  and  then 
one  of  them  buys  the  whole  interest  of  the  others,  he  may  plead 
usury  to  the  whole  note,  and  is  not  limited  in  his  plea  to  one- 
third  of  it,  he  being  liable  for  the  whole  debt.^ 

If  one  loans  money  at  usurious  rates  and  the  borrower  pays 
the  usury  agi'eed  upon,  and  the  lender  deposits  the  money  so 
received  in  the  bank,  the  bank  cannot  set  up  the  fact  that  the 
money  was  obtained  through  usury,  in  defense  of  a  suit  to  re- 
cover the  deposits.^ 

Another  line  of  decisions  holds  that  not  only  the  party  who 

13.  Greenfield  v.  Monaghan,  85  2.  Ready  v.  Huebner,  46  Wis. 
Iowa,  211,  52  N.  W.  193;  Barthell  692,  1  N.  W.  344,  32  Am.  Rep.  749; 
V.  .Jensen,  86  Iowa,  736,  53  N.  W.  Darst  v.  Bates,  95  111.  493;  Sellers 
124.  V.  Botsford,   11  Mich.  59;   Butts  v. 

14.  Henry  v.  McAllister,  93  Ga.  Broughton,  72  Ala.  294;  Union 
667,  20  S.  E.  66.  Nat.  Bank  v.  Bank,  122  111.  510,  14 

1.  Holladay      v.      HoUaday,      13  N.    E.    859;    Lamoile    County   Nat. 

Oreg.    523,    11   P.   260,    12    P.   821;  Bank   v.   Bingham,   50   Vt.    105,   28 

Phillips  V.  Ogle,  21  D.  C.  199;  Hill  Am.  Rep.  490  and  note;   Cheney  v. 

V.   Taylor,   125   Mo.   331,   28   S.   W.  Dunlap,  27  Neb.  401,  43  N.  W.  178. 

599;   People's  Bank  v.  Jackson,  43  3.  Hill   v.   Taylor,    125   Mo.    331, 

S.  Car.  86,  20  S.  E.  786,  49  Am.  St.  28  S.  W.  599. 

Rep.    823;     Moses    v.    Association,  4.  People's   Bank   v.   Jackson,  43 

100  Ala.  465,  14  So.  412;   Fenno  v.  S.  Car.  86,  20  S.  E.  786,  49  Am.  St. 

Sayre,  3  Ala.  458;  Porter  v.  Bank-  Rep.   823. 

ing  Co.,  40  Neb.  274,  58  N.  W.  721;  5.  Porter  v.  Banking  Co.,  43  Neb, 

Chapins   v.    Mathol,    91    Hun,    565,  274,  58  N.  W.  721. 
36  N.  Y.  S.  835. 

248 


Ch.  G       AGKEEMENTS    IN    VIOLATION    OF    STATUTE.       §§  237,  238 

makes  a  usurious  contract;  but  any  person  who  is  seized  of  his 
estate  and  vested  with  his  rights,  where  he  has  assumed  the  pay- 
ment of  the  debt,  may  interpose  the  defense  of  usury,  although 
a  mere  stranger  cannot.^  Under  this  class  of  cases  a  judgment 
creditor  of  a  mortgagor  may  plead  usury,^  So  any  one  in  legal 
privity  under  this  doctrine  with  a  mortgagor  may  set  up  this 
defense.^ 

The  law  in  force  at  the  time  of  bringing  the  suit  will  con- 
tinue in  force  as  to  the  relief  afforded  by  it.^  One  who  volun- 
tarily pays  unlawful  interest  upon  a  usurious  contract  cannot 
recover  it  back  by  suit.^" 

§  238.  Waiver  of  usury. —  The  general  rule  is  that  for  one  to 
avail  himself  of  the  plea  of  usury  he  must  set  it  up,  or  he  will  be 
considered  to  have  waived  it.  A  mortgagor  may  waive  usury, 
and  he  and  those  in  privity  with  him  cannot  avail  themselves 
of  this  defense ;  as  where  he  sells  the  land  subject  to  the  mort- 
gage, the  purchaser  cannot  set  up  usury  in  the  mortgage  note 
as  a  defence. ^^  So,  a  mortgagor  is  estopped  to  set  up  usury  when 
he  sells  his  equity  of  redemption  subject  to  the  mortgage,  which 
grantee  assumes  as  part  payment,  and  such  estoppel  binds 
grantee.^^  And  a  mortgagor  who  has  conveyed  the  mortgaged 
land  to  the  mortgagee,  in  consideration  of  a  release  from  per- 
sonal liability  on  the  mortgaged  debt  cannot  afterward  attack 

■  ■  I 

6.  Westerfield  v.  Bried,  26  N.  J.  8.  Shufelt  v.  Shufelt,  9  Paige 
Eq.  357;  Mason  v.  Lord,  40  N.  Y.  (N.  Y.),  137,  37  Am.  Dec.  381; 
476;  Pearsall  v.  Kingsland,  3  Edw.  Stein  v.  Swensen,  44  Minn.  218,  46 
(N.  Y.)    195.  X.  W.  360. 

7.  Stein  v.  Swensen,  44  Minn.  9.  Edmunds  v.  Bruce,  88  Ya. 
218,  46  N.  W.  360;  Carow  v.  Kelly,  1007,  14  S.  E.  840. 

59  Barb.   (N.  Y.)  239;  Thompson  v.  10.  Kirkpatrick  v.  Smith,  55  Mo. 

Van  Vechten,  27  N.  Y.  568 ;  Gunni-  389,  Ranson  v.  Hays,  39  Mo.  445. 

son  V.  Gregg,  20  N.  H.  .100;  Speng-  11.  Stiger  v.  Burt,  111  111.  328; 

ler  V.  Snapp,  5  Leigh    (Va.),  478;  Log-Cabin   Permanent   Build.   Asso. 

Chaffe    V.    Wilson,    59    Miss.    42;  v.  Gross,  71  Md.  456,   18  A.  896; 

Greene   v.    Tyler,    39   Pa.    St.    361;  Fulford  v.  Keerl,  71  Md.  397,  18  A. 

Compare  Powell  v.  Hunt,  11  Iowa,  663. 

430;  Gaither  v.  Clarke,  67  Md.  18,  12.  Essley  v.  Sloan,  116  111.  391, 

8  A.  740.  6  N.  E.  449. 

249 


§§    238-240  CONTRACTS    IN    VIOLATION    OF    LAW.  Oh.    6 

the  mortgage  on  the  ground  of  usury,  since  the  conveyance  con- 
stitutes a  voluntary"  payment  of  the  entire  debt.^^ 

§  239.  Burden  of  proof. —  The  burden  of  proof  is  on  the 
party  alleging;"  he  must  establish  usury  by  a  clear  preponder- 
ance of  the  evidence. ^^  In  a  mortgage  for  purchase^money,  the 
fact  that  the  sum  secured  is  greater  than  that  named  in  the  con- 
sideration of  the  conveyance  to  the  mortgagor,  with  interest,  is 
no  evidence  of  usury.^^  Under  the  Illinois  statute,  a  inortagor 
in  defending  may  avail  himself  of  the  defense  of  usury  before 
tender  of  the  amount  legally  due." 

§  240.  Place  of  payment  of  interest  —  Conflict  of  laws. — 
Where  the  rate  of  interest  in  the  State  in  which  the  contract  is 
made,  and  in  the  State  in  which  it  is  to  be  performed,  differ, 
the  parties  may  contract  for  the  rate  at  either  place.^  The  rights 
of  parties  to  a  contract  are  to  be  judged  of  ])y  that  law  which 
they  intended,  or,  rather,  by  which  they  may  justly  be  presumed 
to  have  bound  themselves.^ 

The  law  of  the  country  where  the  contract  is  made  governs 
as  to  the  nature,  the  obligation,  and  the  interpretation  of  it,^ 

13.  Mason  v.  Pierce,  142  111.  331,  Co.,  99  Ga.  87,  24  S.  E.  848;  Under- 
31  N.  E.  503.  wood    v.   Mortg.    Co.,    97    Ga.    238, 

14.  Puterbaugh  v.  Fariell,  73  111.  24  S.  E.  847;  Craven  v. 
213;  Kihlholz  v.  Wolff,  103  111.  Bates,  96  Ga.  78,  23  S.  E. 
362.  202 ;  Martin  v.  Johnson,  84  Ga.  481, 

15.  Phelps  V.  Montgomery,  60  20  S.  E.  1082;  Osborne  v.  Bank, 
Minn.  303,  62  N.  W.  2G0;  Hotel  Co.  175  Pa.  St.  494,  34  A.  858;  Mott 
V.  Wade,  97  U.  S.  13;  Conover  v.  v.  Rowland,  85  Mich.  561,  48  N.  W. 
Van  Mater,  18  N.  J.  Eq.  481;  New  638;  Smith  v.  Parsons,  55  Minn. 
England  Mort.  Sec.  Co.  v.  Gay,  33  520,  37  N.  W.  311;  Hubbell  v.  Ins. 
Fed.  Rep.  636.  Co.,   95   Tenn.   585,   32   S.   W.   965; 

16.  Vesey  v.  Ackington,  16  N".  H.  Wittkowski  v.  Harris,  64  Fed.  Rep. 
479.  712. 

17.  Clark  v.  Finlon,  90  111.  245;  2.  Lloyd  v.  Giubert.  6  Best  & 
Tooke  V.  Newman,  75  111.  215.                    S.   100;   Central  Trust  Co.  v.   Bur- 

1.  Nickles  v.   Asso.,   93   Va.   380,       ton,  74  Wis.  329,  43  N.  W.  141. 
25    S.    E.    8;    Aimstead    v.    BIythe  3.  Peninsular,  et(\  Co.  v.  Shand, 

(Miss.),  20  So.  298;  Hill  v.  Mortg.        3  Moore,  P.  C.  N.  S.  272,  290. 


250 


Ch.  6       AGREEMENTS    IN    VIOLATION    OF    STATUTE.        §§  240,  241 

unless  the  contracting  parties  clearly  appear  to  have  had  some 
other  law  in  view.'* 

Where  a  proposition  to  loan  money  was  accepted  by  the  lender 
in  another  State  where  he  resided  and  where  the  contract  was, 
by  its  terms  to  be  performed,  the  contract  is  governed  by  the 
laws  of  that  State.^  Loans  made  in  other  States  may  be  at  the 
rate  of  interest  allowed  by  the  State  where  the  contract  or  loan 
is  made,  although  such  rate  is  in  excess  of  that  fixed  by  the  law 
of  the  loaner's  residence.®  But  a  note  void  in  the  State  where  it 
was  executed,  for  usury,  cannot  be  enforced  in  another  State 
though  it  would  not  have  been  usurious  if  made  in  the  latter 
State.' 

§  241.  Payment  may  be  controlled  by  contract,—  Theparties 
may  contract  where  the  payment  of  the  (^n^e  secured  shall  be 
made.  Thus,  the  parties  may  agree  that  tht  -^ebts  shall  be  paid 
in  a  State  other  than  where  the  contract  is  luade,  and  in  such 
case  the  place  where  the  contract  is  to  be  fulfilled  will  govern, 
as  to  the  legal  effect  of  the  contract.^  In  case  of  a  mortgage, 
if  the  mortgagee  resides  in  the  State  where  the  land  lies,  and 
the  mortgagor  in  another  State,  if  no  place  of  payment  is  named, 
then  the  law  of  the  mortgagee's  State  will  govern.^    The  parties 

4,  Cox  V.  United  States,  6  Pet.  6.  Sheldon  v.  Hactun,  91  N.  Y. 
(U.  S.)  172;  Scudder  v.  Bank,  91  124;  Tilden  v.  Blair,  21  Wall.  (U. 
U.  S.  406;  Pritchard  V.  Norton,  106  S.)  241;  Scudder  v.  Bank,  91  U. 
U.  S.  124,  1  S.  Ct.  102;  Lamar  v.  S.  406.  412;  Pratt  v.  Adams,  7 
Micou,  114  U.  S.  218,  5  S.  Ct.  857;  Paige  (N.  Y.),  615:  Wayne  County 
Watts  V.  Camors,  115  U.  S.  353,  Savings  Bank  v.  Low,  81  N.  Y.  566, 
362,  6  S.   Ct.  91;   Liverpool   Steam  37   Am.  Rep.  533. 

Co.  V.  Ins.  Co.,  129  U.  S.  397,  453,  7.  McGarry  v.  Nicklin,   110  Ala. 

9  S.  Ct.  480.  559,  17  So.  726,  55  Am.  St.  Rep.  40 

5.  Bank  v.  Gibson,  60  Ark.  269,       and  note. 

30    S.    W.    39.      See,    also.     United  1.  Slaeum   v.   Pomery,   6   Cranch 

States  Mort.  Co.  v.  Sperry,   138  U.  (U.  S.)    221;   Duncan  v.  Helm,,  22 

S.  313,   11   S.  Ct.  321;   Newman  v.  La.   Ann.    418;    Fitch   v.   Remer,    1 

Kershaw,     10    Wis.    333;     Mills    v.  Flippen,  C.  C.  15. 

Wilson,    8    Pa.    St.    118;     Cope    v.  2.  Mills    v.    Wilson,    88    Pa.    St, 

Wheeler,  41   N.  Y.   303;   Dobbin  v.  118;   Pingrey  on  Mort.  796. 
Hewitt,  19  La.  Ann.  513;  Cubbedge 
V.   Napier,  62   Ala.   518. 

251 


§    241  CONTRACTS    IN    VIOLATION    OF    LAW.  Clh.    6 

may  stipulate  for  interest  in  either  State,  so  long  as  it  be  not  a 
plan  to  cover  up  a  usurious  transaction.^  But  if  made  payable 
in  another  State  to  cover  up  usury,  the  debt  will  be  declared 
usurious.^ 

When  the  contract  does  not  control,  in  determining  what  law 
governs  the  true  inquiry  is  as  to  the  intention  of  the  parties. 
The  fact  that  the  contract  would  not  be  held  invalid  by  the  laws 
of  the  State  where  the  land  lies  where  the  mortgagor  resides, 
and  where  the  money  is  intended  to  be  used,  furnishes  ground 
for  the  presumption  that  the  law  there  will  govern  as  intended 
by  the  parties.^  So,  a  loan  made  in  New  Hampshire,  upon 
land  in  the  State,  may  be  made  payable  in  New  York,  and  at 
a  higher  rate  than  allowed  by  the  New  Hampshire  law.® 

In  respect  to  mortgages  the  law  of  the  place  of  contract,  or 
of  the  place  of  performance,  determines  the  question  of  usury 
irrespective  of  the  place  where  the  land  is  situated.''  Con- 
tracts are  to  be  governed  by  the  law  of  the  place  of 
performance,  and,  if  the  interest  allowed  at  the  place 
of  performance  is  higher  than  that  permitted  at  the 
place  of  contract,  the  parties  may  stipulate  for  the  higher 
interest  without  incurring  the  penalty  of  usury.  And  so,  if  the 
rate  of  interest  be  higher  at  the  place  of  contract  than  at  the 
place  of  performance,  the  parties  may  lawfully  contract  in  that 
case  also  for  the  highest  rate.  These  rules,  however,  are  subject 
to  the  qualification  that  the  parties  act  in  good  faith,  and  that 

3.  Townsend  v.  Riley,  46  N.  H.  5.  Newman  v.  Kershaw,  10  Wis. 
300;  Peck  v.  Mayo,  14  Vt.  33,  38,  333;  Richards  v.  Bank,  12  Wis. 
39  Am.  Dec.  205;  Martin  v.  John-  697;  Vliet  v.  Camp,  13  Wis.  208; 
son,  84  Ga.  481,  10  S.  E.  1092;  Chapman  v.  Robertson,  6  Paige  (N. 
Mott  V.  Rowland,  8'5  Mich.  56,  48  N.),  627,  31  Am.  Dec.  264  and  note. 
N.  W.  638;  Smith  v.  Parsons,  55  6.  Townsend  v.  Riley,  46  N.  H. 
Minn.  520,  57  N.  W.  311;  Wittkow-  300. 

ski  V.  Harris,  64  Fed.  Rep.  712.  7.  Campion    v.    Kille,    14    N.    J. 

4.  Cope  V.  Wlieeler,  41  N.  Y.  Eq.  229;  DeWolf  v.  Johnson,  10 
303;  Williams  v.  Fitzhugh,  37  N.  Wheat.  (U.  S.)  367;  Cotheal  v. 
Y.  444;  Lockwood  v.  Mitchell,  7  Blydenburgh,  1  Halst.  (N.  J.)  17, 
Ohio  St.  387.  631 ;   Dolman  v.  Cook,  14  N.  J.  Eq. 

56. 


252 


Oil.  6       AGREEMENTS    IN    VIOLATION    OF    STATUTE.       §§  241-243 

the  form  of  the  transaction  is  not  adopted  to  disguise  its  real 
character.* 

g  242.  Computation  of  interest — At  stated  periods. —  Where 
the  payments  are  in  installments  with  interest  at  certain  times, 
the  interest  begins  from  the  making  of  the  contract,  and  the 
interest  falls  due  on  the  specified  intervals.^  In  case  of  a 
mortgage,  if  it  provides  that  the  whole  debt  shall  fall  due  if  the 
interest  is  not  paid  when  due,  the  mortgagee  can  enforce  the 
payment  of  the  interest  alone  or  the  whole  debt  at  his  election.^" 
When  no  payments  have  been  made  on  the  mortgage,  the  in- 
terest must  be  computed  from  the  date  of  the  note  until  the 
rendition  of  the  decree.     It  must  not  then  be  compounded.^^ 

A  settlement  and  payment  of  a  debt,  with  compound  interest, 
where  there  has  been  contract  to  pay  interest  at  stated  periods, 
or  to  pay  interest  in  that  manner,  is  a  usurious  transaction.^^ 

§  243.  The  law  of  another  State  must  be  pleaded. —  In  set- 
ting up  the  usury  law  of  another  State  as  a  defense,  it  must  be 
averred  and  proved  as  a  matter  of  fact.^  The  defense  of  usury 
not  having  been  made,  the  court  should  not  declare  a  contract 
made  in  another  State  usurious,  although  upon  its  face  it  bears 
a  rate  of  interest  in  excess  of  that  allowed  by  the  law  of  the 
State  where  the  suit  is  brought.^ 

The  manner  of  enforcing  the  remedy  is  not  binding  upon  the 

8.  Gelpcke  v.  Dubuque,  1  Wall.  12.  Ward  v.  Bandon,  1  Heisk. 
(U.  S.)    175,  206;   Hollingsworth  v.        (Tenn.)   490. 

Detroit,  3  McLean,  C.  C.  472;  Dun-  1.  Camp  v.  Randall,  81  Ala.  240, 

lap  V.  Wiseman,  2  Disney    (Ohio),  2   So.  287;    Klinck  v.  Price,  4  W. 

398.     See,  also,  Clark  v.  Iowa  City,  Va.   4,   6   Am.   Rep.   268;    Campion 

20    Wall.     (U.    8.)    583;    Genoa   v.  v.  Kille,  14  N.  J.  Eq.  229;  Hosford 

Woodneff,    92    U.    S.    502;    Amy   v.  v.  Xichols,   1  Paige,    (N.  Y.),  220; 

Dubuque,  98  U.  S.  470, '473.  Dolman  v.  Cook,   14  N.  J.  Eq.  56; 

9.  Conners  v.  Holland,  113  Mass.  Andrews  v.  Torrey,  14  N".  J.  Eq. 
50:    Hastings   v.   Wiswall,   8   Mass.  355,  27  Am.  Dec.  63. 

455.  2.  Reiff  v.  Bakken,  36  Minn.  333, 

10.  Waples  V.  Jones,  62  Mo.  440.        31  N.  W.  348. 

11.  Barker  v.  Bank.  80  111.  96. 

253 


§    243  CONTEACTS    IN    VIOLATION"    OF    LAW.  Oh.    6 

courts  of  other  States.^  And  when  the  court  can  use  his  discre- 
tion, he  may  refuse  to  allow  the  statute  of  another  State,  as  to 
the  contract,  to  be  set  up,  where  he  is  of  the  opinionthat  such 
statute  is  unconscionable.*  The  defendant  should  file  such  a 
plea  as  the  law  of  the  foreign  State  prescribes.^ 

3.  Matthews    v.    Wason,    6    Fed.  4.  Corning  v.  Ludlum,  28  N.  J. 

Rep.   461.     See,   also,   Wheelock  v.  Kq.  398. 

Lee,  04  N.  Y.  242;    Bissell  v.  Kel-  5.  Bowman   v.   Miller,   25   Gratt. 

logg,  65  N.  Y.  432.  (Va.)   331,  18  Am.  Rep.  686. 


254 


CHAPTER   VII. 

Wagers  aud  Gaxaing  Contracts. 


AKTICLE  I. 

Wagers  in  General. 

Section  244.  Wagers — Definition. 

245.  Liability  of  Wagers    at  Common  Law. 

246.  In  the  United  States. 

247.  Statutory  Provisions. 

§  244.  Wagers — Definition. —  A  wager  is  a  bet;  a  contract 
by  which  two  or  more  parties  agree  that  a  certain  sum  of  money, 
or  other  thing,  shall  be  paid  or  delivered  to  one  of  them  on  the 
happening  or  not  happening  of  an  uncertain  event.^  Or  it  is 
a  promise  to  pay  money  or  to  deliver  property  upon  the  de- 
termination or  ascertainment  of  an  uncertain  event  or  fact,  the 
consideration  for  the  promise  being  either  a  present  payment 
or  transfer  by  the  other  party,  or  a  promise  to  do  so  upon  the 
event  or  fact  being  determined  or  ascertained  in  a  particular 
way.^  Or  it  is  a  contract  conditional  upon  an  event  in  which 
the  parties,  have  no  interest  except  that  which  they  create  by 
wager.^  But  Leake's  definition  is  not  broad  enough,  because 
parties  may  make  a  wager  on  matter  in  which  they  are  in- 
terested.* 

It  may  be  defined  as  an  agreement  between  parties,  differing 
as  to  an  uncertain  fact  f  or  a  forecast  of  a  future  event,  that  on 
the  transpiring  of  what  will  disclose  the  truth,  a  designated 

1.  Bouvier's  L.  Diet.  4.  Anson  on   Cont.   173. 

2.  Hampden  v.  Walsh,  1  Q.  B.  5.  Goode  v.  Elliott,  3  Term  R. 
Div.  189.  693;  Pugh  v.  Jenkins,  1  Q.  B.  631. 

3.  Lenke  on  Cont.  377. 

255 


§§    244,  245  CONTRACTS    IN    VIOLATION    OF    LAW.  Ch.    7 

sum  of  money  or  other  tiling  shall  be  transferred  from  one  who 
is  found  to  be  in  the  wrong  to  the  other  who  is  ascertained  to 
be  in  the  right.''  If  from  the  terms  of  the  engagement  one  of 
the  parties  may  gain  but  cannot  lose  and  the  other  may  lose  but 
cannot  gain,  and  there  must  be  either  a  gain  by  the  one  or  a 
loss  by  the  other  according  to  the  happening  of  the  contingency, 
it  is  a  gaming  contract.  Thus,  a  merchant  who  gives  to  a 
designated  class  of  customers  an  opportunity  to  secure  by  means 
of  a  nickel-slot  machine  any  article  of  value  additional  to  that 
for  which  such  customers  have  paid,  is  a  gaming  device,  and 
against  the  statute  as  to  gaming.^ 

§  245.  Liability  of  wagers  at  common  law. — Wagers  or  wag- 
ering contracts  upon  indifferent  subjects  are  valid  at  com- 
mon law.^  But  all  wagers  which  tended  to  a  breach  of  the  peace, 
or  to  injure  the  feelings,  character,  or  interests  of  third  per- 
sons, or  which  are  against  the  principles  of  morality,  or  of 
sound  policy,  were  void  at  common  law.^ 

In  England  it  is  held  that  contracts,  although  wagers,  are 
not  void  at  common  law,  and  that  the  statute  has  not  made 
them  illegal  but  only  non-enforceable.^  But,  in  the  United 
States,  all  wagering  contracts  are  held  to  be  illegal  and  void  as 
against  public  policy.* 

6.  Bishop  on  Cont.  530.  liott,  3  Term  R.  693;   Da  Costa  v. 

7.  Meyer   v.    State,    112    Ga.    20,       Jones,  2  Cowp.  734. 

37  S.  E.  96,  51  L.  R.  A.  496,  81  Am.  3.  Thacker    v.    Hardy,    4    Q.    B. 

St.  Rep.   17.     This  was  a  slot  ma-  Div.  685,  8  and  9  Vict.  c.  109,  sec. 

chine  used  by    a  cigar  merchant.  18;  Fitch  v.  Jones,  5  El.  &  B.  238. 

1.  Goode  V.  Elliott,  3  Term  Rep.  4.  Dickson  v.  Thomas,  97  Pa.  St. 

693;  Jones  v.  Randall,  1  Cowp.  37;  278;   Gergory  v.  Wendell,  40  Mich. 

Da   Costa   v.   Jones,   2    Cowp.    734;  432;  Lyon  v.  Culbertson,  83  111.  33, 

Bimn   V.   Riker,   4  Johns.    (N.   Y.)  25  Am.  Rep.  349;  Melchert  v.  Tele- 

427,   4   Am.   Dec.   292;    Bernard   v.  graph  Co.,  3  McCreary,  C.  C.  527; 

Taylor,  23  Oreg.  416,  39  P.  968,  37  Barnard  v.  Backhaus,  52  Wis.  593, 

Am.  St.  Rep.  693  and  note,  18  L.  R.  6   N.   252,   9  N.  595;   Kingsbury  v, 

A.  859  and  note.  Kirwan,  77  N.  Y.  612;  Story  v.  Sol- 

2.4   Kent's     Com.     466;    Green-  oman,  71  N.  Y.  420;  Love  v.  Harvey, 

hood's  Pub.  Pol.  226;   Goode  v.  El-  114  Mass.  80;  Irwin  v.  Williar,  110 

U.  S.  499,  4  S.  Ct.  160. 

256 


Cb.  7      WAGERS  AND  GAMING  CONTRACTS.      §§  240,  247 

§  246.  In  the  United  States. —  The  law  is  interpreted  differ- 
ently in  many  of  the  United  States  as  to  the  legality,  at  common 
law,  of  wagering  contracts.  Here  wagering  contracts  are  void 
by  the  common  law,  and  contracts  which  are  void  at  common 
law,  because  they  are  against  public  policy,  like  contracts  which 
are  prohibited  by  statute,  are  illegal  as  well  as  void.  They  are 
prohibited  by  law  because  they  are  considered  vicious,  and  it  is 
not  necessary  to  impose  a  penalty  in  order  to  render  tbem 
illegal.^  But  the  rule  in  the  United  States  is  not  uniform,  and 
in  some  States  wagers  have  been  enforced.^ 

§  247.  Statutory  provisions. —  The  States  have  enacted  laws 
making  all  gambling  contracts  either  void,  or  both  illegal  and 
void.  By  the  English  statute^  it  is  enacted  that  any  sum  or 
value  exceeding  £100  lost  in  playing  at  any  game,  or  in  betting 
on  the  players,  shall  not  be  recoverable,  and  that  any  contract 
or  security  given  for  the  same  shall  be  void.  Another  statute 
provides  that  securities  for  money  lost  in  playing  at  games,  or 
betting  on  the  players,  or  knowingly  advanced  for  such  purposes, 
shall  be  void,  and  that  the  loser  of  £10  or  more,  after  paying  it, 
may  recover  it  back.  A  later  statute,^  repealed  the  act  of  Anne 
so  far  as  regarded  the  avoidance  of  securities  as  specified  in 
that  act,  and  provides  that  they  shall  thenceforth  be  taken  to 
have  been  given  originally  upon  an  illegal  consideration.  An- 
other statute*  enacts  that  all  contracts,  whether  by  parol  or  in 


5.  Bishop  V.  Palmer,  146  Mass 
469,  16  N.  E.  299,  4  Am.  St.  Rep 
339;  Gibbs  v.  Gas  Co.,  130  U.  S 
396,  9  S.  Ct.  553;  Harvey  v.  Mer 
ritt,  150  Mass.  1,  22  N.  E.  49.  5  L 
R.  A.  200  and  note,  15  Am.  St.  Rep 
159;  Love  v.  Harvey,  114  Mass.  80: 
West  V.  Holmes,  26  Vt-  530;  El 
dred  v.  Malloy.  2  Colo.  320,  25  Am 


McLaughlin,  6  Whart.  (Pa.)  176; 
Rice  V.  Gist,  1  Strob.  (S.  Car.)  82; 
Wilkinson  v.  Towsley,  16  Minn. 
299,  10  Am.  Dec.  139. 

6.  Cothran  v.  Ellis,  125  111.  496, 
16  N.  E.  646;  Campbell  v.  Richard- 
son, 10  Johns.  (M".  Y.)  406; 
Dewees  v.  Miller,  5  Harr.  (Del.) 
347;    Trenton  Ins.   Co.   v.   Johnson, 


Rep.   752;    Wheeler   v.    Spencer,   15  24  N.  J.  L.  576;  Kirkland  v.  Ran- 

Conn.    28;    Bernard   v.    Taylor,    23  den,   8   Tex.    10,   58   Am.   Dec.   94; 

Oreg.  416,  39   P.   968,   18  L.  R.  A.  .Johnson  v.  Russell,  37  Cal.  070. 

889  and  note,  39  Am.  St.  Rep.  693  1.  16  Car.   11,  ch.  7. 

and  note;  Stoddard  v.  Martin,  1  R.  2.  9  Anne,  ch.  14. 

L  1,  19  Am.  Dec.  643:  Lucas  v.  Har-  3.  5  and  6  Wm.  IV,  ch.  41. 

per,    24    Ohio    St.    328;    Edgall    v.  4.  8  and  9  Vict.,  ch.  109. 

257 


§§    247,  248  CONTKAOTS    IN    VIOLATION    OF    LAW.  Oh.    7 

writing,  by  way  of  gaming  or  wagering,  shall  be  mill  and  void, 
and  that  no  suit  shall  be  brought  or  maintained  in  any  court  of 
law  or  equity  for  recovering  any  sum  of  money  or  valuable  thing 
which  shall  have  been  deposited  in  the  hands  of  any  person  to 
abide  the  event  on  which  any  wager  shall  have  been  made,  pro- 
vided that  this  statute  shall  not  be  deemed  to  apply  to  any 
subscription  or  contribution,  or  agreement  to  subscribe  or  con- 
tribute, for  or  towards  any  plates,  prizes,  or  sum  of  money  to 
be  awarded  to  the  winner  or  winners  of  any  lawful  game,  sport, 
pastime,  or  exercise.  This  act  repeals  the  statute  of  16  Charles 
and  Anne,  but  has  no  effect  on  the  act  of  5  and  6  William,  as  to 
securities.  The  statutes  of  the  various  States  differ  consider- 
ably and  must  be  consulted  in  many  cases  to  know  what  the  law 
is.  But  all  of  them  bear  considerable  resemblance  to  the  Eng- 
lish. 

AETICLE  II. 

BoAED  OF  Trade  Dealings. 

Section  248.  Dealing  in  Futures — When   Valid. 

249.  Options — Futures — Margins. 

250.  Corners  in  Grain  on  Board  of  Trade. 

251.  Brokers. 

252.  Designation  of  Transaction  by  the  Parties. 

253.  Construction  of  Gambling  Laws. 

254.  Intent — Deal  in  Futures. 

255.  Selling  Commodities  not  in  Existence. 

256.  Parol  Evidence. 

257.  Rights  of  Innocent  Holder  of  Note  Given  on  Option  Contract. 

§  248.  Dealing  in  futures — When  valid. —  Stock  exchanges 
were  created  because  the  business  requirements  made  them 
necessary.  Without  them  those  that  have  products  to  sell  and 
those  that  wished  to  buy  would  have  to  spend  their  time  in 
seeking  customers.  They  are  labor-saving  concerns,  logical, 
inevitable,  and  absolutely  required  for  the  expansion  of  trade 
and  commerce  of  the  civilized  world.  They  are  necessary  to 
the  business  world  as  improved  machinery  to  the  manufactur- 
ing and  farming  operations.     They  are  legitimate  institutions. 

258 


Ch,    Y  WAGERS    AND    GAMING    CONTRACTS.  §    248 

Their  misuse  by  gamblers  does  not  condemn  them.  Every  in- 
vention of  man  for  the  amelioration  of  the  race  may  be  diverted, 
in  some  particulars,  from  legitimate  channels.  All,  or  nearly 
all,  of  the  great  accumulations  of  property  in  the  hands  of  capi- 
talists were  obtained  in  speculation,  sometimes  legal,  sometimes 
illegal.  To  assert  that  the  gambling  element  dominates  the 
stock  or  produce  exchange,  is  erroneous  and  far  from  the  facts. 
Legitimate  speculation  even  in  staple  products  which  everybody 
uses  is  sometimes  burdensome  and  the  States  and  Congress  have 
enacted  laws  to  regulate  such  manipulation.  These  laws  will 
be  treated  in  their  proper  places  in  this  chapter. 

It  is  well  settled  that  purchases  or  sales  of  commodities  of 
any  kind  for  future  delivery  are  valid  when  not  against  a 
statute,  although  the  seller  may  not  own  the  commodity  at  the 
time  the  contract  is  made,  and  will  have  no  other  means  of  per- 
forming than  by  going  into  market  and  making  the  requisite 
purchase  when  the  time  for  delivery  arrives.^  Marginal  con- 
tracts which  are  void  by  statute,  have  no  reference  to  trans- 
actions between  commission  merchants,  their  customers  and 
patrons.^  And  the  mere  purchase  of  stocks  on  a  margin  is  not 
necessarily  a  gambling  contract.' 

Stocks  may  be  bought  on  credit,  just  as  flour  or  sugar  or  any 
other  commodity,  and  the  credit  may  be  for  the  whole  price  or 
for  a  part  of  it,  and  with  security  or  without  it.  "Margin"  is 
security,  nothing  more,  and  the  only  difference  between  stocks 
and  other  commodities  is  that  as  stocks  are  more  commonly 
made  the  article  of  gambling  speculation  than  some  other  things, 
and  courts  are  disposed  to  look  more  closely  into  stock  transac- 
tions to  ascertain  their  true  character.  If  they  are  real  purchases 
and  sales,  they  are  not  gambling  though  they  are  done  partly 
or  wholly  on  credit.^ 

1.  Western  Union  Telegraph  Co.  2.  Connor  v.  Black,  119  Mo.  126, 

V.  Littlejohn,  72  Miss.  1025,  18  So.       24  S.  W.  184. 

418;    Warren    v.    Scanlon,    59    111.  3.  Peters  v.    Grim,   149   Pa.    St. 

App.  138;  Hatch  v.  Douglas,  48  163,  24  A.  192,  34  Am.  St.  Rep. 
Conn.  116,  40  Am.  Eep.  154.  599. 

4.  Hopkins   v.    O'Kane,    169   Pa. 


St.  478,  32  A.  429. 


259 


§§    248,  249'  CONTRACTS    IN    VIOLATION    OF    LAW.  Ch,    7 

The  law  against  the  sale  of  stocks  on  margin  does  not  prevent 
any  legitimate  transfer  of  stock,  whether  through  the  agency  of 
a  broker  or  otherwise,  nor  any  legitimate  and  bona  fide  pledge 
of  stock  certificates  as  security  for  borrowed  money,  whether 
borrowed  for  the  purpose  of  paying  for  the  stock  or  any  other 
purpose ;  and  where  such  is  not  only  the  form,  but  the  substance 
of  the  contract,  the  inhibition  of  the  statute  does  not  apply.^ 

§  249.  Options — Futures — Margins. —  A  contract  whereby 
one  of  the  parties  is  to  have  the  option  to  buy  or  sell  at  a  future 
time  a  certain  commodity,  on  the  understanding  of  both  that 
there  is  to  be  no  delivery  of  the  commodity,  the  party  losing  to 
pay  to  the  other  the  difference  in  the  market  price  simply,  is 
by  common  law,  as  well  as  by  statutes,  in  nearly  all  the  States, 
a  gambling  contract,  or  wager  upon  the  future  price  of  the  com- 
modity, and  is,  therefore,  void.^ 

If,  in  a  formal  contract  for  the  purchase  and  sale  of  com- 
modities to  be  delivered  in  the  future  at  a  fixed  price,  it  is  actu- 
ally agreed  that  the  commodities  shall  not  be  delivered  and  the 
price  paid,  but  that,  when  the  appointed  time  for  performance 
arrivesi,  a  settlement  shall  be  made  by  a  payment  in  money  of 
the  difference  between  the  contract  price  and  the  market  price 
of  the  commodities  at  that  time,  this  is  a  wagering  contract. 
But  if  it  is  agreed  that  the  contract  shall  be  performed  accord- 

5.  Shcehy  V.  Shinn,  103  Cal.  325,  70   N.   Y.    202,   26    Am.    Rep.    573; 

37  P.  397;   Scales  v.  State   (Tex.),  Kahn  v.   Walton,  46   Ohio  St.   195, 

81  S.  W.  947.  20   N.   E.   203;    Lester  v.   Buel,   49 

1.  Board  of  Trade  v.  Kinsey  Co.,  Ohio  St.  240,  30  N.  E.  821,  34  Am. 

121  Fed.  Rep.  670;  Peterson  v.Gur-  St.    Rep.    556;    Harvey   v.    Merrill, 

ren,    62    111.    App.    163;     Cover    v.  150  Mass.  1,  22  N.  E.  48,  52  L.  R. 

Smith,  82  Md.  586,  34  A.  465;  Con-  A.  200,  15  Am.  St.  Rep.   159;   Gre- 

nor   V.   Black,    132   Mo.    150,   33   S.  gory  v.  Wandell,  39  Mich.   337,  33 

W.  783;  Walker  v.  Johnson,  59  111.  Am.  Rep.  390;    Cockrell  v.  Thomp- 

App.  448;  Pearce  v.  Rice,  142  U.  S.  son.  85  Mo.  510;  Rumsey  v.  Berry, 

28,  12  S.  Ct.  130;  Irwine  v.  Williar,  65  Me.  570;  Burt  v.  Meyer,  71  Md. 

110  U.   S.  499,  505,  4   S.  Ct.   501;  467,   18  A.  746;   Stewart  v.  Schall, 

Embrey  v.  Jemison,   131  U.  S.  336,  65  Md.  289,  4  A.  399. 
9  S.  Ct.   776;   Bigelow  v.  Benedict, 


260 


Ch.    7  WAGEltS    AND    GAMlWa    CONTEACTS.  §    '249 

ing  to  its  terms  if  either  party  requires  it,  and  either  party  shall 
have  a  right  to  require  it,  the  contract  is  not  a  wagering  contract 
because  one  or  both  parties  intend,  when  the  time  for  perform- 
ance arrives,  not  to  require  performance,  but  to  substitute  there- 
for a  settlement  by  the  payment  of  the  difference  between  the 
contract  price  and  the  market  price  at  that  time. 

To  constitute  a  wagering  contract,  it  is  sufficient,  whatever 
may  be  the  form  of  the  contract,  that  both  parties  understand 
and  intend  that  one  party  shall  not  be  bound  to  deliver  the 
commodity  and  the  other  to  receive  it  and  pay  the  price,  but 
that  the  settlement  shall  be  made  by  the  payment  of  the  differ- 
ence in  prices." 

In  general,  where  a  person  contracts  with  another  to  purchase 
stock  for  him  with  the  understanding  that  the  stock  shall  not  be 
delivered  and  that  the  only  difference  in  the  market  price  shall 
be  paid  or  received,  the  transaction  is  a  wager  on  future  market 
price  and  is  void  under  the  statute.^  But  a  future  sale  and  de- 
livery of  a  commodity  at  a  fixed  price,  with  a  bona  fide  intention 
to  fulfill  the  requirement  of  the  agreement,  is  valid  and  not 
a  wagering  contract.*     But  a  statute  invalidating  contracts  giv- 

2.  Dunn  v.  Bell,  85  Tenn.  581.  4  W.    113,    1    Am.   St.    Rep.    145    and 

S.  W.  41;   Pearce  v.   Foot,   113  111.  note;    White  v.  Barber,    123   U.    8. 

228,    55    Am.    Rep.    414;    Flagg   v.  392,    8     S.     Ct.    221;     Tomblin    v. 

Gilpin,    17    R.    I.    10,    19    A.    1084;  Callen,  69  Iowa,  229,  28  N.  W.  573;- 

Mohr   V.   Miesen,   47  Minn.   228,   49  Pickering  v.  Cease,  79  111.  328;  Mc- 

N.   W.   862 ;    Lawton   v.   Bletch,   83  Grew  v.  Produce  Exchange,  85  Tenn. 

Ga.  663,  10  S.  E.  353;  Kirkpatrick  572,  4  S.  W.  38,  4  Am.  St.  Rep.  771; 

V.  Bonsall,  72  Pa.  St.  155;  Maxton  Lyon   v.   Culbertson,   83   111.   33,   25 

V.  Green,  75  Pa.  St.   166;   Evering-  Am.   Rep.   349;    Johnson  v.   Kaune, 

ham   V.   Meighan,   55   Wis.   354,    13  21  Mo.  App.  22. 

N.  269;  Lowry  v.  Dillman,  59  Wis.  3.  Standard  Mill   Co.   v.   Flower, 

197,  18  N.  14;  Cothran  v.  Ellis,  125  46  La.  Ann.  315,  15  So.  16;  West  v. 

ni.    496,    16    N.    E.    648;    Shaw   v,  Wright,  86  Hun,  436,  33  N.  Y.  S. 

Clark,  49  Mich.  384,   13  N.  786.  43  898;  Kingsbury  v.  Kirwan  77  N.  Y. 

Am.    Rep.    474;    Bullard   v.    Smith,  612;    Story  v.    Saloman,    71    N.   Y. 

139  Mass.  492,  2  N.  E.  86;  Harvey  420;  Schreiner  v.  Orr,  55  Mo.  App. 

V.  Merrill,  150  Mass.  1,  22  N.  E.  49,  406;    Cover  v.   Smith,   82   Md.   586, 

5  L.  R.  A.  200  and  note,  15  Am,  St.  34  A.  465 ;  Conner  v.  Black,  132  Mo. 

Rep.    59;    Whitesides   v.   Hunt,    97  150,  33  S.  W.  783. 
Ind.    191,   49   Am.   Rep.   44;    Craw-  4.  Clewes  v.  Jamison,   182   U.  S. 

ford  V.   Spenser,   92   Mo.   498,   4   S.  461,  21  S.  Ct.  845. 

261 


§§    249,  250  CONTKACTS    IN    VIOLATION    OF    LAW.  Ck.    7 

ing  an  option  to  sell  or  buy,  at  a  future  time  any  commodity, 
wLetlier  delivery  is  contemplated  or  not,  is  not  in  violation  of 
any  constitutional  provision.''  This  is  on  the  ground  that  if, 
by  taking  all  the  circumstances  that  attend  the  pursuit  of  a 
particular  vocation,  the  State  thinks  that  certain  admitted  evils 
cannot  be  successfully  reached  unless  that  calling  be  actually 
prohibited,  the  courts  cannot  interfere,  unless  an  unmistakable 
infringement  of  right  secured  by  the  fundamental  law.  Such 
statute  must  be  deemed  a  valid  law,  and  as  such  must  be  en- 
forced, though  it  infringes  to  a  degree  upon  the  property  right 
of  citizens,  as  it  prevents  option  contracts  which  are  wagering. 
A  calling  may  not  in  itself  be  immoral,  and  yet  the  tendency  of 
what  is  generally  or  ordinarily  or  often  done  in  pursuing  that 
calling  may  be  towards  that  which  is  admittedly  immoral  or 
pernicious.  The  object  of  this  legislation  is  to  suppress  abso- 
lutely gambling  in  future  sales,  and  to  this  extent  private  rights 
must  be  deemed  secondary  to  the  public  good. 

A  contract  which  on  its  face  is  one  of  sale  with  a  provision 
for  future  delivery,  being  valid,  the  burden  of  proving  that  it 
is  invalid,  as  being  a  mere  cover  for  the  settlement  of  differ- 
ence rests  with  the  party  making  the  assertion.®  And  the  de- 
fendant may  introduce  the  charter  of  a  stock  exchange  to  show 
that  it  makes  only  actual  sales,  and  has  no  right  to  deal  in 
futures.'' 

§  250.  Corners  in  grain  on  board  of  trade. —  Contracts  to 
corner  the  market  in  relation  to  grain  or  other  commodity  are 
made  void  by  statute  or  are  void  because  against  public  policy.^ 
And  also  a  loan  for  making  a  corner  is  void.^  A  combination  of 
several  parties  to  enhance  the  price  of  grain  by  making  large 
purchases  and  preventing  a  fair  selling  thereof,  whereby  an 

5.  Booth    V.    Illinois,    184   U.    S.  7.  Scales  v.  State   (Tex.),  81  S. 
425,  22   S.  Ct.  425,   186  111.  43,  57        W.  947. 

N.  E.  798,  50  L,  R.  A.  762,  78  Am.  1.  Craft  v.  McConoughy,  79  111. 

St.  Rep.  229  and  note.  346,  22  Am.  Rep.  171;   Samuels  v. 

6.  Clews  V.  Jamison,   182   U.   S.  Oliver,  130  111.  73,  22  N.  E.  499. 
461,  21  S.  Ct.  845.  2.  Raymond  v.  Leavitt,  46  Mich. 

447,  9  N.  525. 

262 


Ch.  7      WAGERS  AND  GAMING  CONTRACTS.      §§  250,  251 

immense  lot  of  grain  is  put  into  the  hands  of  a  firm  in  the  com- 
bine, and  thus  forcing  up  the  price  of  grain  in  the  market,  is 
contrary  to  public  policy  and  no  party  to  the  agreement  can 
maintain  an  action  for  services  growing  out  of  the  transaction.^ 
Legitimate  dealing  on  the  board  of  trade  is  as  valid  as  other 
sales  and  purchases  of  grain  and  such  contracts  will  be  enforced 
by  the  courts.  And  where,  in  a  contract,  the  term  "  market 
price  "  is  used,  parties  will  be  conclusively  held  to  have  had 
in  contemplation  an  honest  market  price,  and  not  any  fictitious 
or  corner  price  which  might  possibly  occur  upon  the  market  or 
exchange  involved ;  or  the  average  market  price  of  the  lawful 
market  on  the  board  of  trade.* 

§  251.  Brokers. —  A  broker  may  negotiate  a  wagering  con- 
tract without  being  privy  to  the  illegal  intent  of  the  principal 
parties  to  it  which  renders  it  void,  and  in  such  case,  being  in- 
nocent of  any  violation  of  law,  and  not  suing  to  enforce  an  un- 
lawful contract,  has  a  meritorious  ground  for  the  recovery  of 
compensation  for  services  advanced.  But  when  the  broker  is 
privy  to  the  unlawful  design  of  the  parties,  and  brings  them  to- 
gether for  the  purpose  of  entering  into  an  illegal  agreement,  he 
is  particeps  criminis,  and  cannot  recover  for  services  rendered 
or  losses  incurred  by  himself  on  behalf  of  either  in  forwarding 
the  transaction.^ 

The  weight  of  authority  in  the  United  States  is  that  brokers 
who  knowingly  make  contracts  that  are  void  and  illegal  as 
against  public  policy,  and  advance  money  on  account  of  them  at 

3.  Foss  V.  Cummings,  149  111.  N.  E.  646;  Fareira  v.  Gabell,  89 
353,  36  N.  E.  553.  Pa.    St.   89;    Crawford  v.    Spencer, 

4.  Waite  v.  Paud  (Chi.  Super.  92  Mo.  498,  4  S.  W.  713,  1  Am.  St. 
Ct.),  25  Nat.  Cor.  Rep.  118,  37  Chi.  Rep.  745  and  note;  Lowry  v.  Dill- 
Leg.   News,   25.  man,  59  Wis.  197,  18  N.  4;  White- 

5.  Embrey  v.  Jemison,  131  U.  S.  sides  v.  Hunt,  97  Ind.  191,  49  Am. 
336,  9  S.  Ct.  776;  Harvey  v.  Mer-  Rep.  441;  First  Nat.  Bank  v.  Pack- 
rill,  150  Mass.  1,  22  N.  E.  410,  5  ing  Co.,  66  Iowa,  41,  23  N.  W.  255; 
L.  E.  A.  200  and  note,  15  Am.  St.  Rumsey  v.  Berry,  65  Me.  570; 
Rep.  159.  See,  also,  Kahn  v.  Wal-  DeMary  v.  Bartenshaw,  131  !Mich. 
ton,  46  Ohio  St.  195,  20  N.  E.  203;  326,  91  N.  W.  647. 

Cothran  v.   Ellis,    125   111.    496,    16 

263 


§§    251-253  CONTKACTS    IN    VIOLATION    OF    LAW.  Ch.    7 

the  request  of  their  principals,  cannot  recover  either  the  money 
advanced  or  their  commissions.** 

And  where  the  purchase  or  sale  of  a  commodity  is  adopted  as 
a  mode  to  disguise  a  wager  upon  the  market  price  of  the  com- 
modity at  a  future  time,  the  fact  that  one  of  the  parties  as- 
sumes to  make  the  purchase,  or  sale,  as  a  commission  merchant 
only,  will  not  alter  the  relation  in  which  they  stand  as  parties 
to  the  wager.     Each  is  in  law  jxirticeps  criminisJ 

§  252.  Designation  of  transaction  by  the  parties. —  The 
designation  given  to  the  transactions  hy  the  parties  themselves  is 
not  conclusively  determinative  of  their  character  or  of  their  le- 
gality.^ Whether  a  transaction  or  a  series  of  transactions  between 
a  broker  and  his  customer  for  the  purchase  of  stocks  that  are  not 
immediately  delivered,  or  of  which  an  immediate  delivery  is 
not  contemplated,  is  in  contravention  of  the  statute,  is  a  ques- 
tion to  be  determined  in  each  particular  case,  and  the  circum- 
stances under  which  the  transaction  is  had,  and  the  conduct  of 
the  parties  in  reference  thereto,  will  have  great  influence  in 
determining  this  fact.^  It  is  not  the  purpose  of  the  statute  to 
interfere  with  legitimate  business,  or  to  make  void  all  time  con- 
tracts for  the  purchase  of  shares  in  incorporated  companies.^ 

§  253.  Construction  of  gambling  laws. —  The  court  will  take 
judicial  knowledge  that  the  object  of  these  statutes  was  to  strike 

6.  Embrey  v.  Jemison,  131  U.  S.  1.  Kullman  v.  Simmes,  104  Cal. 
336,  9  S.  Ct.  776;   Harvey  v.  Mer-        595,  38  P.  362. 

rill,   150  Mass.   1,  2'2   N.  E.   419,  5  2.  Kullman  v.   Simmes,   104  Cal. 

L.  E.  A.  200  and  note;   15  Am.  St.  595,  38  P.  302. 

Eep.   159.  3.  Cashman  v.  Root,  89  Cal.  373, 

7.  Lester  v.  Buel,  49  Ohio  St.  26  P.  883,  12  L.  R.  A.  511,  23  Am. 
240,  39  N.  E.  821,  34  Am.  St.  Rep.  St.  Rep.  482.  See,  also,  Hatch  v. 
556;  Kahn  v.  Walton,  46  Ohio  St.  Douglas,  48  Conn.  116,  40  Am.  Rep. 
195,  20  N.  E.  203;  Pearce  v.  Foot.  154;  Peters  v.  Grim,  149  Pa.  St. 
113  111.  228;  Conners  v.  Black,  119  163,  24  A.  192,  34  Am.  St.  Rep. 
Mo.  126,  24  S.  W.  184;  Dows  v.  599;  Scales  v.  State  (Tex.),  81  S. 
Glaspel,  4  N.   Dak.  257,  60  N.  W.  W.  947. 

60;  Pope  v.  Hanke,  155  HI.  617,  40 
N.  E.  839,  28  L.  R.  A.  568. 

264 


Ch.    7  WAGERS    AN1>    GAMING    CONTRACTS.  §§    253,  254 

down  a  species  of  gambling  in  commodities,  wherein  parties 
are  wont  to  contract  for  the  purchase  of  connnodities  to  be  de- 
livered at  a  future  day,  upon  the  speculation  that  they  would 
advance  in  price  sufficiently  to  meet  their  agreements  or  pur- 
chases/ To  give  effect  to  this  statute  it  is  as  much  the  duty 
of  the  courts  to  see  that  it  is  not  evaded  as  that  it  is  not  directly 
violated.''  But  there  is  no  warrant  for  eonstruinu'  the  statute 
with  any  unreasonable  strictness.  It  should  be  construed  justly, 
to  the  end  that  the  legislative  intention  may  be  accomplished. 
Legitimate  transactions  on  the  board  of  trade  are  of  the  utmost 
importance  in  commerce.  Such  contracts,  whether  for  immedi- 
ate or  future  delivery,  are  valid  in  law,  and  receive  its  sanction 
and  all  the  support  that  can  be  given  them.  It  is  against  gambl- 
ing contracts  that  the  law  applies,  and  no  subtle  construction 
aught  to  be  adopted  to  defeat  the  end  of  justice.^ 

§  254.  Intent — Deal  in  futures. — Where  the  transactions  for 
the  delivery  and  sale  of  commodities  in  the  future  are  not  made 
with  the  intention  that  any  commodity  shall  be  received  or  de- 
livered, but  that  the  understanding  that  each  transaction  shall 
be  settled  by  the  payment  of  the  difference  between  the  con- 
tract price  and  the  market  price  at  the  time  fixed,  they  are  mere 
wagers  or  gambling  contracts  and  are  void.''^  This  intention 
may  be  established  not  merely  by  the  assertion  of  the  parties  but 
by  all  the  attending  circumstances  of  the  transactions  ;^  and  is 

4.  Cashman  v.  Root,  89  Cal.  373,  111.  617,  40  N.  E.  839,  28  L.  R.  A. 
26  P.  883,  12  L.  R.  A.  511,  23  Am.  568;  Barnard  v.  Backhaus,  52  Wis. 
St.  Rep.  482.  593,  6  N.  252,  9  N.  595;  Crawford 

5.  Sheehy  v.  Shinn,  103  Cal.  325,  v.  Spencer,  92  Mo.  498,  4  S.  W.  713, 
37   P.   393.  1  Am.  St.  Rep.  745  and  note;  First 

6.  Pearce  v.  Foote,  113  111.  228,  Nat.  Bank  v.  Packing  Co.,  66  Iowa, 
239,   55  Am.  Rep.  414.  41,  23  N.  W.  255. 

1.  Jamison  v.    Wallace,    167    111.  2.  Crawford  v.   Spencer,  92  Mo. 

388,  47  N.  E.  762,  59  Am.  St.  Rep.  498,  4  S.  W.  713,   1  Am.  St.  Rep. 

302;    Schneider  v.   Turner,   130  111.  745  and  note;   Pope  v.  Hanke,   155 

28,  22  N.  E.  497,  6  L.  R.  A.  164  and  111.  617,  40  N.  E.  839,  28  L.  R.  A. 

note;  Cothran  v.  Ellis,  125  111.  196,  568. 
16  N.  E.   646;    Pope  v.   Hanke,    155 

265 


§§    254,  255  CONTEACTS    IN    VIOLATION    OF    LAW.  Ch.    7 

a  question  for  the  jury,  to  be  determined  by  the  circumstances 
of  all  the  evidence.^ 

In  regard  to  option  contracts,  they  are  valid  and  enforceable. 
If  it  is  not  the  intention  in  making  a  contract,  that  any  prop- 
erty shall  be  delivered  or  paid  for,  but  that  the  fictitious  sale 
shall  be  settled  on  differences,  the  contract  is  void.  But  if  it  is 
the  bona  fide  intention  of  the  seller  to  deliver,  or  the  buyer  to 
pay,  and  the  option  consists  merely  in  the  right  of  delivery 
within  a  given  time,  the  contract  is  valid,  and  the  putting  up 
of  margins  to  cover  losses  which  may  accrue  from  the  fluctua- 
tions of  prices  is  legitimate  and  proper,*  while  this  is  the  law, 
yet  several  States  have  passed  laws  making  all  option  contracts 
invalid  as  gambling  contracts  and,  therefore,  void.  These 
statutes  are  constitutional  and  are  given  their  full  force  by  the 
courts.^ 

§  255.  Selling  commodities  not  in  existence. —  At  one  time 
it  was  held  that  when  the  vendor  had  neither  the  commodities, 
nor  entertained  any  contract  to  buy  them,  at  the  time  of  the 
sale,  nor  had  any  reasonable  expectation  of  receiving  them  by 
consignment,  but  intended  to  go  into  the  market  and  buy  the 
articles  he  engaged  to  deliver,  no  action  could  be  maintained 
on  such  contract.     That  doctrine  has  been  changed  by  the  au- 

3.  Hill  V.  Johnson,  38  Mo.  App.  L.  R.  A.  164  and  note;  Fichter  v. 
383;  Pope  V.  Hanke,  155  111.  617,  40  Frank,  41  Fed.  Eep.  859;  Osgood 
N.  E.  839,  28  L.  R.  A.  568.  v.  Bender,  75  Iowa,  550,  39  N.  W. 

4.  Bigelow  V.  Benedict,  79  N.  Y.  887,  1  L.  E,.  A.  655  and  note,  82 
202;  Kirkpatrick  v.  Bonsai,  72  Pa.  Iowa,  171,  47  N.  W.  100;  Schlee  v. 
St.  155;  Hanna  v.  Ingram,  93  Ala.  Guckenkeimer,  179  111.  593,  54  N. 
482,  9  So.  621;  Pieronnet  v.  Lull,  E.  302;  Minnesota  Lumber  Co.  v. 
10  Neb.  45,  6  N.  759;  Lester  v.  Buel,  Coal  Co.,  160  111.  85,  43  N.  E.  774; 
49  Ohio  St.  249,  30  N.  E.  821,  34  Preston  v.  Smith,  156  111.  359,  40 
Am.  St.  Rep.  55'6;  Godman  v.  N.  E.  949,  31  L.  R.  A.  529;  Burnett 
Meixel,  65  Ind.  32 ;  Clewes  v.  Jami-  v.  Baxter,  64  111.  App.  544 ;  Cor- 
son, 182  U.  S.  461,  21  S.  Ct.  845.  coran  v.  Coal  Co.,  138  111.  390,  28 

5.  Booth   V.    Illinois,    184   U.    S.  N.  E.  759;  People  v.  Booth,  186  111. 
425,  21  S.  Ct.  845,  186  El.  43,  50  43,  57  N.  E.  798,  50  L.  R.  A.  762, 
L.  R.  A.  762,  78  Am.  St.  Rep.  229  184   U.   S.   425,   21    S.   Ct.   485,   78 
and  note,  57  N.  E.  79 ;  Schneider  v.  Am.  St.  Rep.  229  and  note. 
Turner,  130  111.  28,  21  N.  E.  497,  6 

266 


Ch.  7         WAGERS  AND  GAMING  CONTRACTS.         §  255 

thorities  of  to-day,  and  now  the  vendor  may  contract  for  tlie 
sale  of  an  article  not  in  his  possession,  and  such  rule  is  entirely 
in  accordance  with  public  policy.^  If  this  was  not  the  rule,  the 
mercantile  business  of  the  present  day  could  no  longer  be  suc- 
cessfully carried  on  if  merchants  and  dealers  were  unable  to 
purchase  that  which  as  to  them  had  no  actual  or  potential  ex- 
istence. A  dealer  has  a  clear  right  to  sell  and  agree  to  deliver 
at  some  future  time  that  which  he  then  has  not,  but  expects  to 
go  into  the  market  and  buy;  and  it  is  equally  clear  that  the 
parties  may  mutually  agree  that  there  need  not  be  a  present 
delivery  of  the  commodities,  but  that  such  delivery  may  take 
place  at  some  other  time.^  But  there  is  a  difference,  and  a  dis- 
tinction must  be  made  between  a  contract  where  there  is  a 
bona  fide  intent  to  fulfill  the  agi'eements  according  to  their 
terms,  and  those  where  the  difference  in  the  market  price  is  to 
be  paid.  If  the  parties  agree  at  the  time  of  making  the  contract 
that  no  title  to  any  property  shall  pass  or  any  delivery  be  made, 
or  when,  from  the  nature  of  the  contract,  it  must  be  apparent 
that  the  intent  of  the  parties  was  such  that  at  some  future  speci- 
fied time  the  party  losing  should  pay  to  the  other  the  difference 
between  the  selling  price  at  that  time  and  the  time  of  making 
the  contract,  it  will  be  a  contract  which  the  law  refuses  to  en- 
force, for  the  reason  that  it  is  clearly  a  wager  upon  the  price  of 
the  commodity,  at  some  future  day.^ 

1.  Bryan  v.  Lewis,  Ry.  &  Moody,  3.  Whitesides  v.  Hunt,  97  Ind. 
386,  a;  Walcott  v.  Heath,  78  III.  191,  49  Am.  Rep.  441;  Grizwood  v. 
433;  Rumsey  v.  Berry,  65  Me.  570;  Blane,  11  C.  B.  526;  Yerkes  v.  Sal- 
Ashton  V.  Dakin,  4  Hurl.  &  N.  867;  oman,  11  Hun  (N.  Y.),  471;  Cam- 
Cole  V.  Milmine,  88  HI.  349;  Logan  eron  v.  Durkheim,  55  N.  Y.  425; 
V.  Musie,  81  111.  415;  Gregory  v.  Story  v.  Salomon,  71  N.  Y.  420; 
Wendell,  39  Mich.  337,  33  Am.  Pickering  v.  Cease,  79  HI.  328; 
Eep.  390 ;  Bona's  Appeal,  55  Pa.  St.  Lyon  v.  Culbertson,  83  HI.  33,  25 
294;  Noyes  v.  Spaulding,  27  Vt.  Am.  Rep.  349;  Bigelow  v.  Benedict, 
420;  Hibblewhite  v.  McMorine,  5  70  N.  Y.  202,  26  Am.  Rep.  573; 
Mees.  &  Wel.  462;  Kingsbury  v.  Maxton  v.  Gheen,  75  Pa.  St.  .166; 
Kirwin,  43  N.  Y.  Super.  451;  Pix-  Peabody  v.  Speyers,  56  N.  Y.  230; 
ley  V.  Boynton,  79  111.  351.  Williams  v.  Tiedemann,  6  Mo.  App. 

2.  Gregory  v.  Wendell,  39  Mich.  299;  Sampson  v.  Shaw,  101  Mass. 
337,  33  Am.  Rep.  340.  145,  3  Am.  Rep.   327;   Kirkpatrick 

267 


§§    256,  257  CONTKACTS    IN    VIOLATION    OF    LAW.  Ch.    7 

§  256.  Parol  evidence — Charter  of  corporation. —  Parol  evi- 
dence is  admissible  between  the  parties  when  the  contract  was 
made ;  that  the  commodity  should  not  be  delivered  but  that  only 
the  difference  in  the  market  price  should  be  paid  or  received.* 
And  so  the  intention  that  none  of  the  commodity  in  question 
should  be  delivered  may  be  shown  by  parol  evidence,  and  that 
the  difference  in  the  market  price  should  be  adjusted  between 
the  parties.^  And  a  charter  of  a  stock  exchange  may  be  offered  in 
evidence  to  show  what  powers  the  exchanges  have  in  selling 
commodities,  and  that  only  actual  sales  are  made.^ 

§  257.  Rights  of  innocent  holder  of  note  given  on  option 
contract. —  The  general  rule  is  that  illegality  of  consideration, 
even  though  such  consideration  grows  out  of  an  act  prohibited 
by  statute,  cannot  be  set  up  against  the  bona  fide  assignee  of  a 
note,  unless  the  statute  expressly,  or  by  necessary  implication, 
declares  the  note  to  be  void.^  That  such  notes  are  void  between 
the  parties  does  not  admit  of  discussion.^ 

Some  of  the  expressions  in  the  text-books  are  to  the  effect 
that,  where  a  statute  expressly  declares  the  contract  or  transac- 
tion which  forms  the  consideration  of  the  note  or  bill  illegal,  it 
is  void  in  the  hands  of  a  bona  fide  holder  for  value;    but  the 

V.  Bonsall,  72  Pa.  St.  155;   Rudolf  6.  Scales  v.   State    (Tex.).  81   S. 

V.   Winters,   7   Nebr.    125;    Bartlett  W.  947. 

V.   Smith,    13   Fed.   Rep.   263;    Bar-  1.  Pope  v.  Hanke,  155  111.  617,  40 

nard  v.   Backhaus,   52   Wis.   593,   6  N.  E.  839,  28  L.  R.  A.  568;  Daniel 

N.  252,   9   N.   595;    Scales  v.   State  on    Neg.    Inst.    197,    808,    3    Kent's 

(Tex.),  81  S.  W.  947.  Com.   79,  80;   Thacker  v.  Hardy,  4 

4.  West  V.  Wright,  86  Hun,  436,  Q.  B.  Div.  685;  Cunningham  v. 
33  jSr.  Y.  S.  898;  Watte  v.  Wieker-  Bank,  71  Ga.  490;  Lully  v.  Morgan, 
sham,  27  Neb.  457,  43  N.  W.  259;  21  D.  C.  88;  Grizewood  v.  Blane, 
Sprague  v.  Warren,  26  Nebr.  326,  11  C.  B.  526.  See,  also,  Lyons  v. 
41  N.  W.  1113,  3  L.  R.  A.  679  and  Hodgen,  90  Ky.  280,  13  S.  W.  1076; 
note;  Boyd  v.  Hanson,  41  Fed.  Rep.  Compare  Shaw  v.  Clark,  49  Mich. 
174.  384,   13  N.   786,  43  Am.  Rep.  474; 

5.  Dwight  V.  Badgley,  60  Hun  Third  Nat.  Bank  v.  Harrison,  10 
(N.  Y.),  144,  14  N.  Y.  S.  498;  Gaw        Fed.   Rep.   243. 

V.  Bennett,  153  Pa.  St.  247,  25  A.  2.  Bride  v.  Clark,  161  Mass.  130, 

414,  34  Am.  St.  Rep.  699;  Hentz  v.        36  N.  E.   745. 
Jewell,   20   Fed.   Rep.  592. 

268 


Ch.  7      WAGERS  AND  GAMING  CONTRACTS.      §§  257,  258 

weight  of  authority  sustains  the  position  that,  while  such  note 
or  bill  is  void  as  between  the  parties  to  it,  it  is  not  void  as 
against  the  holder  for  value  without  notice  unless  the  statute 
also  declares  the  note  or  bill  itself  to  be  void.^  Illegality  is  not 
the  circumstance  which  avoids  negotiable  securities  in  the  hands 
of  a  bona  fide  holder,  because,  in  the  absence  of  express  declara- 
tion by  the  legislature  that  the  securities  shall  be  void,  it  Avill  be 
no  defense  against  a  bona  fide  holder,  wdthout  notice  of  the 
illegality.*  To  hold  such  notes  void,  in  the  absence  of  statutory 
provisions  declaring  them  void,  would  be  materially  to  obstruct 
the  circulation  of  negotiable  instruments,  and  thereby  seriously 
embarrass  mercantile  transactions.  They  are  only  void  in  the 
hands  of  an  innocent  party  for  value,  when  the  statute  declares 
them  void.^ 


ARTICLE  III. 

Rights  Under  Gambling  Contracts. 

Section  258.  Law  of  the  Place — Gambling  Contracts. 

259.  Recovering  Back  the  Money  Lost. 

260.  Constitutionality  of  Statute  to  Recover  Back  Money  Lost  in 

Wagering  Contracts. 
26 L  Action  to  Recover  Back  Money  Lost  in  Gambling  Contract. 

262.  Offering  a  Reward  or  Premium. 

263.  Entrance  Fee — Competitors  in  Horse  Racing. 

264.  Bookmaking  and  Pool  Selling. 

265.  Difference  Between  Wager  and  Premium  or  Reward. 

§  258.  Law  of  the  place — Gambling  contracts. —  A  contract 
that  is  valid  in  one  State  will  be  enforced  in  another  State, 
unless  it  is  against  good  morals,  or  is  repugnant  to  the  policy  or 
positive  institutions  and  laws  of  such  State.^    The  nature,  valid- 

3.  Daniel  Neg.  Inst.  808;  Eagle  Backliaus,  52  Wis.  503,  6  N.  252, 
V.  Kohn,  84  111.  292;  Chit,  on  Bills,  9  N.  595;  Pope  v.  Hanke,  L55  111. 
115,  116.  617.     See,  also,  Vallett  v.  Parker, 

4.  Pope  V.  Hanke,    155   111.   617,  6  Wend.  (N.  Y.)  615. 

40  N.  E.  839,  28  L.  R.  A.  568.  1.  Phinney    v.    Baldwin,    16    111. 

5.  Traders    Bank    v.    Alsop,    64        108,  61   Am.  Dec.   62;   Mumford  v. 
Iowa,    97,   9   N.   863;    Barnhard   v.      Canty,  50  111.  370,  99  Am.  Dec.  525. 

2G9 


§§    258,  259  CONTKACTS    IN    VIOLATION    OF    LAW.  Cll.    7 

itj,  and  interpretation  of  contracts  must  be  governed  by  the 
laws  of  the  country  where  made  or  where  they  are  to  be  per- 
formed.^ 

But  the  law  of  any  State  has  no  force  or  validity  propria  vigore 
beyond  the  territorial  limits  of  the  State.  Whatever  extraterri- 
torial validity  it  may  have  is  owing  to  the  comity  which  pre- 
vails between  different  States  or  nations.  That  comity  does 
not  require  that  such  law  should  be  executed  when  it  is  against 
the  public  policy  of  the  State  where  the  remedy  is  sought,  or 
in  violation  of  its  own  laws.^  Hence,  the  validity  of  a  note  in 
the  hands  of  an  innocent  holder  in  the  State  where  the  contract 
was  made,  does  not  require  the  enforcement  of  such  note  by  the 
courts  of  another  State,  in  which  the  statute  makes  such  notes 
void  even  in  the  hands  of  a  bona  fide  holder.* 

If  the  transactions  out  of  which  an  alleged  debt  arose  oc- 
curred in  a  State,  and  are  within  the  statute  prohibiting  gam- 
bling and  both  parties  are  citizens  of  such  State,  a  court  of 
equity  of  this  State  will  restrain  the  creditor  from  proceeding 
against  the  debtor  in  another  State  to  which  the  creditor  has 
resorted  to  evade  the  laws  of  the  State  where  the  contract  was 
made.^ 

§  259.  Recovering  back  the  money  lost. —  The  right  of  ac- 
tion to  recover  back  money  paid  in  pursuance  of  a  wagering 
contract  depends  wholly  upon  the  statute;  no  remedy  being  al- 
lowed at  common  law.®     The  party  having  knowingly  partici- 

2.  Evans  v.  Anderson,  78  111.  37  A.  372,  37  L.  K  A.  654,  60  Am. 
558;  Austedt  v.  Sutter,  30  111.  164;  St.  Rep.  352.  See,  also,  Bushby  v. 
Yeatman  v.  Cullen,  5  Blackf.  (Ind.)  Wunday,  5  Madd.  297;  Portarling- 
280;  WoodruflF  v.  Hill,  116  Mass.  ton  v.  Soulby,  3  Mylne  &  K.  104; 
310.  Keyser  v.  Rice,  47  Md.  203,  28  Am. 

3.  Mumford  v.  Canty,  50  111.  Rep.  448;  Cole  v.  Cunningham,  133 
370;  Faulknor  v.  Hyman,  142  Mass.  U.  S.  107,  10  S.  Ct.  241;  Densmore 
53,  6  N.  E.  846;  Hill  v.  Spear,  50  v.  Neuesheimer,  32  Hun  (N.  Y.), 
N.  H.  253,  9  Am.  Rep.  205 ;  Fisher  204 ;  Don  v.  Lippman,  5  CI.  &  F.  8 ; 
V.  Lord,  63  N.  H.  514,  3  A.  927.  Liverpool  Marine  Credit  Co.  v.  Hun- 

4.  Pope  V.  Hanke,  155  111.  617,  40  ter,  3  Ch.  App.  486. 

N.  E.  839,  28  L.  R.  A.  568.  6.  Weyburn   v.   White,   22   Barb. 

5.  Miller  v.  Gittings,  85  Md.  601,        (N.  Y.)   82. 

2Y0 


Ch.    7  WAGEES    AND    GAMING    CONTKACTS.  §§    259-2G2 

pated  in  an  illegal  transaction,  the  common  law  will  leave  liira 
without  remedy  in  case  of  loss.^ 

But  in  most  of  the  States  a  statute  has  been  passed  giving 
the  loser  the  right  to  recover  back  the  money  lost  in  a  wagering 
contract 

§  260.  Constitutionality  of  statute  to  recover  back  money 
lost  in  wagering  contract. —  The  acts  relative  to  Avagering  con- 
tracts in  securities  and  commodities  are  constitutional/  on  the 
principle  that  the  laws  aiming  at  the  suppression  of  gambling 
contracts  are  for  the  public  good.  Neither  is  the  objection  ten- 
able that  the  statute  is  unconstitutional  because  it  makes  cer- 
tain conduct  prima  facie  evidence  of  the  existence  of  certain 
facts.® 

§  261.  Action  to  recover  back  money  lost  in  gambling  con- 
tracts.—  An  action  for  money  had  and  received,  which  has  been 
lost  in  gambling  contracts,  is  an  action  on  contract.^''  And  de- 
mand for  the  money  lost  before  commencing  action  is  not 
necessary  in  order  to  maintain  suit  for  the  recovery  of  money 
lost  in  gaming. ^^ 

§  262.  Offering  a  reward  or  premium.—  The  mere  trotting  or 
racing  of  horses,  when  done  in  a  proper  manner  and  not  in  tbe 
public  streets  or  highways,  is  not  an  illegal  act  at  common  law ; 
and  it  is  well  settled  that  betting  on  the  result  of  a  horse  race 
is  not  illegal  at  common  law.^^     The  mere  racing  or  trotting  of 

7.  Crawford  v.  Spencer,  92  Mo.  10.  Crandell  v.  White,  164  Mass. 
498,  4   S.  W.   713,   1   Am.   St.  Rep.        54,  21  N.  E.  204. 

745  and  note;  Irwin  v.  Williar,  110  11.  Johnson  v.  McGregor,  55  111. 

U.  S.  499,  4  S.  Ct.  160;  Embrey  v.  App.  530. 

Jemison,   131    U.   S.   336,   9   S.   Ct.  12.  See  Da  Costa  v.  Jones,  Cowp. 

776;  Phelps  v.  Holderness,  56  Ark.  729;    Goods  v.   Elliott,   3   Term  R. 

300,  19  S.  W.  921;   Dows  v.  Glas-  693;  McAllester  v.  Haden,  2  Camp, 

pel,  4  N.  Dak.  251,  60  N.  W.  60.  438;   Blaston  v.  Pye,  2  Wils.  309; 

8.  Crandell  v.  White,  164  Mass.  Gibbons  v.  Gouverneur,  1  Denio  (IST. 
54,  41  N.  E.  204.  Y.),  170;  Van  Valkenburgh  v.  Tor- 

9.  Holmes  v.  Hunt,  122  Mass.  rey,  7  Cow.  (N.  Y.)  252;  Bunn  v. 
505,  23  Am.  Rep.  381.  Riker.    4    Johns.     (N.    Y.)     426,    4 

271 


§§    262-264-  CONTRACTS    IN    VIOLATION    OF    LAW.  Cll.    7 

horses,  when  conducted  in  a  proper  place  and  in  a  proper  man- 
ner, is  not  an  illegal  act.  Offering  a  reward  or  premium  to  the 
successful  competitor  in  such  a  race  or  trot  is  therefore  just  as 
lawful  as  the  offering  a  reward  for  competing  in  any  other 
lawful  business  ;^"  but  in  some  States  such  reward  is  prohibited 
in  certain  cases." 

§  263.  Entrance  fee — Competitors  in  horse  racing. —  The  fact 
that  the  parties  competing  for  the  reward  or  premium  offered 
are  required  to  pay  something  in  the  way  of  an  entrance  fee 
before  they  are  allowed  to  compete  does  not  make  the  transaction 
a  betting  or  gaming  transaction.  All  competitors  for  premiums 
in  agricultural  societies  are  required  to  pay  an  entrance  fee, 
and  these  entrance  fees  go  to  make  up  the  premiums  offered  to 
the  competitors.^  It  is  only  when  it  is  shown  that  the  offering 
a  reward  or  premium  to  the  competitors  is  a  mere  subterfuge 
for  bettting  and  gaming  on  a  horse-race  or  an  uncertain  event, 
that  it  comes  within  the  law  prohibiting  betting  and  gaming.^ 
Thus,  if  two  men  owning  trotting  horses  should  contribute 
equally  or  otherwise  a  sum  of  money,  and  put  it  into  the  hands 
of  some  other  person  for  the  purpose  of  offering  it  as  a  premium 
or  reward  to  them  only,  and  to  the  owner  of  the  horse  that 
should  win  the  race,  such  a  transaction  will  come  under  the 
rule  that  prohibits  betting  on  a  horse  or  other  race.^ 

§  264.  Bookmaking  and  pool  selling. —  That  bookmaking 
and  pool-selling  are  each  betting  upon  the  horse-race  or  particu- 
lar event  upon  which  they  are  made  or  sold,  is  not  questioned.  In 

Am.    Dec.    292;    Campbell   v.    Rich-  1.  People  v.  Fallon,  4  App.  Div. 

ardson,  10  Johns.  (N.  Y.)  406.  82,    39    N.    Y.    S.    865;    Biegler    v. 

13.  Porter  v.  Day,  71  Wis.  296,  37  Trust  Co.,  62  111.  App.  560;  Ballard 
N.  W.  259;  Harris  v.  White,  81  N.  v.  Brown,  67  Vt.  586,  32  A.  485; 
Y.  532;  Misner  v.  Knapp,  13  Org.  Porter  v.  Day,  71  Wis.  296,  37  N. 
135,  9  P.  65,  57  Am.  Rep.  6;  Delier  W.   259. 

V.  Agri.   Society,  57  Iowa,  481,    10  2.  Gibbons  v.  Gouverneur,   1   De- 

N.     872;  Alvord  v.  Smith,  63  Ind.  nio    (N.  Y.),  170. 

58.  3.  Gibbons      v.      Gouverneur,      1 

14.  Bronson  Agri.  &  B.  Asso.  v.  Denio   (N.  Y.),  170. 
Ramsdell,  24  Mich.  441. 

272 


Ch.    7  WAGEKS    AM>    OAMING    CONTRACTS.  §§    264,265 

the  first,  the  betting  is  with  the  book-makers;  in  tlie  second,  the 
betting  is  among  the  purchasers  of  the  pool,  the  paying  a  com- 
mission to  the  seller/  In  Illinois  the  proviso  of  the  act  against 
book-making  and  pool  selling,  that  its  provisions  shall  not  ap- 
ply to  the  actual  enclosure  of  fair  or  race-track  association, 
confers  no  such  right  to  carry  on  book-making  and  pool-selling 
within  such  enclosure,^ 

§  265.  Difference  between  v^ager  and  premium  or  revi^ard. — 
A  bet  or  wager  is  ordinarily  an  agreement  between  two  or  more 
persons  that  a  sum  of  money  or  some  valuable  thing,  in  con- 
tributing which  all  agi-eeing  take  part,  shall  become  the  prop- 
erty of  one  or  more  of  them  on  the  happening  in  the  future  of 
an  event  at  the  present  imcertain,  and  the  stake  is  the  money 
or  thing  thus  put  upon  the  chance.  There  is  in  a  wager  this 
element  that  does  not  enter  into  a  premium  or  reward,  that  each 
party  to  the  wager  gets  a  chance  of  gain  from  others,  and  takes 
a  risk  of  his  own  to  them.  A  premium  is  ordinarily  some  valu- 
able thing,  oifered  by  a  person  for  the  doing  of  something  by 
others,  into  the  competition  of  which  he  does  not  enter.  He 
has  no  chance  of  gaining  the  thing  offered ;  and  if  he  abides 
by  this  offer,  that  he  must  loose  it  and  give  it  over  to  some  of 
those  contending  for  it  is  reasonably  certain.^ 

This  is  the  difference,  when  a  premium  or  prize  is  offered 
in  good  faith  to  the  winner  in  a  competitive  contest,  which  con- 
test is  not  unlawful  in  itself,  the  transaction  is  a  lawful  one,  and 
the  person  offering  the  prize  or  premium  will  be  held  liable  in 
the  law  to  make  good  his  offer  to  the  winner.^ 

1.  James  v.  State,  63  Md.  242;  State  v.  Falk.  66  Conn.  250,  33  A. 
Commonwealth  v.  Simonds,  79  Ky.       913. 

618.  3.  Harris  v.  White,  81  N.  Y.  532. 

2.  Swigart  v.  People,  154  HI.  284,  4.  Porter  v.  Day.  71  Wis.  296, 
40  N.  E.  432;  Chicago  v.  Brownell,       37  N.  W.  259. 

146  111.  64,  34  N.  E.  595.    See,  also, 


§    26f  CONTKACTS    IN    VIOLATION    OF    LAW.  Cll.    7 

AETICLE  IV. 

Insueance  Conteacts, 

Section  266.  Wagering  Contracts  of  Insurance. 

267.  Assignment  of  Policy. 

268.  Limiting  Amount  of  Debt  in  Insurance. 

269.  Benevolent  Associations. 

§  256.  Wagering  contracts  of  insurance. —  At  common  law, 
wagering  contracts  of  insurance  were  valid,  and  no  insurable 
interest  was  necessary  to  make  contract  valid.^  But  in  the 
United  States,  irrespective  of  statute,  contracts  of  insurance 
with  a  person  who  has  no  insurable  interest  in  the  property  or 
life  are  mere  wagering  contracts,  and  are  void.^  In  order  to 
take  the  case  out  of  the  objection  of  being  a  wager  policy,  it  is 
necessary  to  show  that  the  insured  has  some  interest  in  the  life 
of  the  cestui  que  vie;  so  tliat  the  real  purpose  is  not  a  wager, 
but  to  secure  such  advantage,  supposed  to  depend  on  the  life  of 
another.  Whatever  may  be  the  nature  of  such  interest,  and 
whatever  the  amount  insured,  it  can  work  no  injury  to  the  in- 
surers, because  the  premium  is  proportioned  to  the  amount; 
and  whether  the  insurance  be  to  a  large  or  small  amount,  the 
premium  is  computed  to  be  a  precise  equivalent  for  the  risk 
taken.^  Wagering  contracts  of  insurance  have  been  repudiated 
generally  in  the  United  States.* 

1.  New  York  Life  Ins.  Co.  v  Stevens  v.  Warren,  101  Mass.  565; 
Rosenheim,  56  Mo.  App.  27;  Dean  Beseh  v.  Ins.  Co.,  28  Ind.  64;  Swee- 
V.  Dicker,  2  Stra.  1250;  Kemp  v.  ney  v.  Ins.  Co.,  20  Pa.  St.  337; 
Vigne,  1  Term  R.  304;  Trenton  Ins.  Fowler  v.  Ins.  Co.,  26  N.  Y.  422; 
Co.  V.  JoTmson,  24  N.  J.  L.  576;  Crotty  v.  Ins.  Co.,  144  U.  S.  621,  12 
Buchanan  v.  Ins.  Co.,  6  Cow.    (N.  S.  Ct.  749. 

Y.)    318;    Clendening  v.   Church,   3  3.  Loomis    v.    Ins.    Co.,    6    Gray 

Caines   (N.  Y.),  141;  Lord  v.  Dall,  (Mass.),  396;  Ky.  L.  &  C.  Ins.  Co. 

12  Mass.   115,   117,  7  Am.  Dec.   38  v.   Hamilton,   63   Fed.   Rep.    93,    11 

and  note;  Dalby  v.  Life  Assur.  Co.,  C.  C.  A.  42,  22  U.  S.  App.  386. 

15   C.  B.   365.  4.  Cammack   v.   Lewis,    17   Wall. 

2.  Loomis    v.    Ins.    Co.,    6    Gray  (  U.  S.)  642;  Crotty  v.  Ins.  Co.,  144 
(Mass.),    396;     Lord    v.    Dall,    12  U.  S.  621,  12  S.  Ct.  749. 

Mass.  115,  7  Am.  Dec.  38  and  note; 

274 


Ch.  7      WAGERS  AND  GAMING  CONTRACTS.      §§  267,  268 

§  267.  Assignment  of  policy. —  It  is  generally  held  that  where 
a  policy  is  valid  at  its  inception,  it  may  be  assigned  to  one  not 
having  an  interest  in  the  life  of  the  insured,  where  not  used  to 
cover  up  a  wagering  contract.^  The  rule  gathered  from  the 
decisions  is  that  where  one  takes  out  a  policy  upon  his  own  life 
as  an  honest  and  bona  fide  transaction,  and  the  amount  insured 
is  made  payable  to  a  person  having  no  interest  in  the  life,  or 
where  such  policy  is  assigned  to  one  having  no  interest  in  the 
life,  the  beneficiary  in  the  one  case  and  the  assignee  in  the 
other  may  hold  and  enforce  the  policy  if  it  was  valid  in  its  in- 
ception, and  the  policy  was  not  procured  or  the  assignment  made 
as  a  contrivance  to  circumvent  the  law  against  betting,  gambling 
and  wagering  policies.^  But  there  is  respectable  opposition  to 
this  doctrine,  and  it  is  held  that  the  assignment  of  a  policy  to 
a  party  not  having  an  insurable  interest  is  as  objectionable  as 
the  taking  out  of  the  policy  in  his  name,  and  such  policy  is  then 
void.^ 

§  268.  Limiting  amount  of  debt  in  the  insurance. —  In  case 
of  a  creditor  and  debtor,  the  policy  cannot  be  limited  to  the 
amount  of  the  debt.  If  it  was  otherwise  the  creditor  would  be 
compelled  to  lose  whatever  sums  he  might  be  required  to  pay 
in  effecting  the  insurance  and  paying  premiums.      The  bene- 

1.  Nye   V.    Grand   Lodge,   9    Ind.  Iw    v.    Ashley,    3    Sim.    149;    Bur- 

App.    131:    Classey  v.   Ins.   Co.,   84  singer  v.  Bank,  67  Wis.  75,   30  N. 

Hun  (N.  Y.),  360,  32  N.  Y.  S.  335;  \V.  290,  58  Am.  Rep.  848  and  note; 

Olmstead  v.  Keyes,  85  N.  Y.   593;  Murphy  v.  Reed,  64  Miss.  014,  1  S. 

Houston  V.   Merrifield,   51   Ind.   24.  W.  761. 

19  Am.  Rep.  722;   St.  John  v.  Ins.  2.  Olmstead  v.    Keyes,   85   N.   Y. 

Co.,  13  N.  Y.  31,  64  Am.  Dec.  529;  593;    Classey  v.   Ins.   Co.,   84   Hun 

Valton   V.    Ins.    Co.,    20   N.   Y.    32  ;  ( N.  Y. ) ,  350,  32  N.  Y.  S.  335. 

Mutual  Life  Ins.  Co.  v.  Allen,   138  3.  Warnock  v.  Davis,   104  U.   S. 

Mass.  24,  52  Am.  Rep.  245;   Eckel  4(;2:    Cammack  v.   Lewis,   15  Wall. 

V.  Renne.  41   Ohio  St.  232;   Martin  (U.    S.)    643;    Missouri   Valley   L. 

V.  Stubbins,   120  111.  387,   18  N.  E.  Ins.  Co.  v.  Sturges,  18  Kan.  93,  26 

057,  9  Am.  St.  Rep.  620:  Fitzgerald  Am.  Rep.  671;  Bosye  v.  Adams,  81 

V.  Ins.  Co.,  56  Conn.  116,  13  A.  673,  Ky.    368;    Franklin   L.   Ins.   Co.   v. 

17  A.  411,  7  Am.  Rep.  288;   Clark  Hazzard,    41    Ind.    121;    Crotty    v. 

V.   Allen,    11    R.   I.   430;    Ritter   v.  Ins.   Co.,   144  U.   S.   621,   12   S.   Ct. 

Smith,  70  Md.  260,  16  A.  890;  Ash-  749. 

275 


§§    268,  269  CONTRACTS    IN    VIOLATION    OF    LAW.  Cll.    7 

ficiarj  takes  the  chances  of  all  future  contingencies.^  In  Penn- 
sylavania  creditors  insured  their  debtor,  a  healthy  man  of  forty- 
two  years  of  age,  in  the  sum  of  $3,000,  to  protect  a  debt  of  about 
$100.  The  expectancy  of  life  of  the  insured  was  twenty-six 
years,  and  the  assessment  and  annual  dues  during  such  time 
would  have,  together  with  the  interest,  amounted  to  $4,336, 
and  the  court  held  that  it  was  not  a  gambling  transaction  and 
that  a  recovery  for  the  full  amount  of  the  policy  could  be  sus- 
tained.^ And  so  where  the  assignee  pays  $300  for  the  assign- 
ment of  a  policy  for  $2,000,  and  agrees  to  pay  the  dues  and 
assessments  on  the  policy,  in  the  absence  of  proof  of  any  age 
or  expectancy  of  life  of  the  insured,  the  court  cannot  say,  as  a 
matter  of  law,  that  the  sale  or  assignm.ent  was  tainted  with  the 
vice  of  gambling,  such  question  usually  being  one  of  fnct.^ 

§  269.  Benevolent  associations. —  In  the  ordinary  life  in- 
surance, the  beneficiary  named  in  the  policy  acquires  an  inter- 
est in  the  policy,  but  in  benevolent  associations,  the  beneficiary 
acquires  no  vested  interest  until  the  death  of  the  insured.*  In 
benevolent  associations,  if  any  person  is  designated  as  a  bene- 
ficiary who  does  not  come  within  the  classes  named,  the  designa- 
tion is  invalid.^  The  association  can  only  pay  the  fund  to  the 
persons  designated  in  its  constitution  and  by-laws,  or  the  statute 
creating  it.  And  if  it  should  promise  to  pay  to  some  other  per- 
son the  promise  is  void  f  so  wagering  contracts  cannot  be  cre- 
ated in  this  kind  of  insurance. 

1.  Arnick  V.  Butler,  111  Ind.  578,  S.Daniels  v.  Pratt,  143  Mass. 
12  N.  E.  518,  60  Am.  Rep.  722  and  216,  10  N.  E.  166;  Rinuge  v.  Aid 
note.  Soc,  146  Mass.  286,  15  N.  E.  628. 

2.  Ulrich  v.  Eeinaehl,  143  Pa.  6.  Britton  v.  Royal  Arcanum, 
St.  238,  22  A.  862,  13  L.  R.  A.  433  46  N.  J.  Eq.  102,  18  A.  675,  19  Am. 
and  note,  24  Am.  St.  Rep.  534.  St.  Rep.  376;  Knights  v.  Nairn,  60 

3.  Nye  v.  Grand  Lodge,  9  Ind.  Mich.  44,  26  N.  W.  826;  ilichigan 
App.  131,  36  N.  E.  429.  Mut.  Ben.  Asso.  v.  Rolfe,  76  Mich. 

4.  Holland  v.  Taylor,  111  Ind.  146,  42  N.  W.  1094;  Sanger  v. 
121,  12  N.  E.  116;  Masonic  Mut.  Rotlischild,  123  N.  Y.  577,  26  N.  E. 
Ben.  Soc.  v.  Burkhart,  110  Ind.  189,        3. 

10  N.  E.  79,  11  N.  E.  449. 

2Y6 


Cll.  7         WAGERS  AND  GAMING  CONTRACTS.         §  270 

ARTICLE  V. 
Lottery  Dealings. 

Section  270.  Lottery — Definition  — Tradinj^  Stamps. 

271.  Gratuitous  Distribution  of  Property  by  Lot  or  Chance. 

272.  Sale  of  Lottery  Tickets. 

273.  Lottery  Company  Chartered  by  the  Legislature. 

§  270.  Lottery  —  Definition  —  Trading  stamps. —  A  lottery 
is  a  scheme  by  which,  on  one's  paying  money  or  some  other 
thing  of  value,  he  obtains  the  contingent  right  to  have  something 
of  greater  value,  if  on  appeal  to  chance,  by  lot  or  otherwise,  un- 
der the  direction  of  the  manager  of  the  scheme,  it  should  decide 
in  his  favor.^  Or  it  is  a  transaction  where  a  pecuniary  con- 
sideration is  paid,  and  it  is  to  be  determined  by  lot  or  chance, 
according  to  some  scheme  held  out  to  the  public,  what  and  how 
much  he  who  pays  the  money  is  to  receive  for  it.^ 

The  term  lottery  has  no  technical  meaning.  The  statutes 
generally  declare  a  lottery  to  be  a  scheme  for  the  distribution  of 
property  by  chance  among  persons  who  have  paid  or  agreed  to 
pay  a  valuable  consideration  for  the  chance,  whether  called  a 
lottery,  raffle,  or  gift  enterprise  or  by  some  other  name.^  Every 
lottery  has  the  characteristics  of  a  wager  or  bet,  although  every 
bet  is  not  a  lottery.  The  courts  have  sho^vn  a  general  disposi- 
tion to  bring  within  the  term  lottery  every  species  of  gaming, 
involving  a  distribution  of  prizes  by  lot  or  chance,  and  which 
comes  within  the  mischief  to  be  remedied.*  Any  scheme  for 
the  distribution  of  prizes,  by  lot  or  chance,  by  which  one,  on 
paying  money  to  another,  obtains  a  token,  which  entitles  him  to 
receive  a  larger  value  or  nothing,  as  some  formula  or  chance 
may  determine,  is  a  lottery.^    But  a  guessing  contest  where  one 

1.  Cross  V.  People,  18  Colo.  321.  4.  Yellow  Stone  Kit  v.  St«te,  88 
32  P.  821,  38  Am.  St.  Rep.  292.  Ala.  19G,  7  So.  338,  7  L.  R.  A.  559 

2.  Hull  V.  Rusrgles,  56  N.  Y.  424;  and  note,  16  Am.  St.  Rep.  38  and 
Barclay  v.  Pearson    (1893),   2   Ch.  note. 

154.  5.  State   v.   Bonefl,   42   La.   Ann. 

3.  State  V.  Moren,  48  Minn.  555.  1110,  8  So.  300,  21  Am.  St.  Rep. 
51  N.  W.  618.  413;    Dunn  v.   People,  40  111.  465; 


g    '270  CONTRACTS    IN    VIOLATION    OF    LAW.  Cll.     7 

j)avs  money  to  guess  on  the  number  of  votes  that  will  be  cast  for 
a  candidate  or  any  other  guessing  of  the  number  of  things  and 
the  like  is  not  a  gaming  transaction  or  lottery.  And  if  the  party 
paying  to  guess  has  any  right  to  recover  the  money  paid,  it  is 
on  the  gTOuud  that  the  contest  is  illegal  at  common  law  or 
against  public  policy.^ 

The  law  prohibiting  the  use  of  trading  stamps  is  unconsti- 
tutional. Such  law  does  not  come  within  the  police  power  of  the 
State.  The  use  of  trading  stamps  is  not  injurious  to  the  public. 
And  if  such  use  does  seriously  interfere  with  the  business  of 
others,  this  will  not  make  it  an  illegal  act.  Hence  such  statute  is 
not  the  valid  exercise  of  the  legislative  power  and  is,  therefore, 
unconstitutional.'^  Such  a  scheme  is  not  a  gift  enterprise,  because 
it  is  not  a  distribution  of  articles  by  chance,^  as  is  done  in  a 
gift  enterprise.® 

However,  the  courts  are  not  in  harmony  as  to  the  legality  of 
prohibition  of  the  use  of  trading  stamps.  So  it  has  been  held 
that  giving  trading  stamps  is  not  a  lottery  or  gift  enterprise  in 
tlie  ordinary  sense,  yet  it  is  within  the  terms  of  the  prohibition 
of  gift  enterprises  under  the  act  of  Congress  of  1873,  and 
therefore  the  issuing  of  trading  stamps  to  customers  is  illegal.^" 
In  Rhode  Island  a  statute  which  prohibits  the  merchant  from 
giving  to  the  purchaser,  as  part  of  the  same  transaction,  a  stamp, 
coupon,  or  other  device,  which  would  entitle  him  to  receive 
from  a  third  person  some  article,  well-defined  article,  in  addi- 
tion to  the  one  sold,  is  an  unwarranted  interference  with  per- 
sonal liberty  guaranteed  by  the  State  and  the  Federal  Oonstitu- 

Commonwealth  v.  Sheriff,  10  Phil.  7.  Young       v.        Commonwealth 

(Pa.)  203;  Holman  v.  State,  2  Tex.  (Va.),  45  S.  E.  327;   State  v.  Dal- 

App.  610;    Chavannah  v.  State,  49  ton,  22  R.  I.  77,  46  A.  234,  84  Am. 

Ala.  396;  Commonwealth  v.  Wright,  Rep.  818. 

137   Mass.   250,   50  Am.   Rep.   306;  8.  State  v.  Shugart,  138  Ala.  86, 

Hull  V.  Ruggles,  65  Barb.    (N.  Y.)  35  So.  28. 

432;  State  v.  Clarke,  33  N.  H.  329,  9.  Lohman  v.  State,  81  Ind.   17; 

66  Am.  Dec.  723;   State  v.  Bryant,  Marseve    v.    Anderson,    106    Mass. 

74   N.   Car.   207;    Randle  v.   State,  422;  State  v.  Shugart,  138  Ala.  86, 

42    Tex.    580.  35  So.  28. 

6.  Stevens    v.    Cincin.     Enquirer  lO.  Lansburg    v.    Dist.    Col.,    11 

Co..  Court  Index,  Nov.  8,  1902.  App.  D.  C.  512. 

278 


Cll.     7  WAGEKS    AM)    (iAMI.NG    CONTRACTS.  §§    2*70,271 

tion."  So  a  statute  is  imconstitutioual  so  far  as  it  prohibits  a 
corporation  from  issuing  trading  stamps  and  selling  the  same 
to  merchants  for  distribution  to  their  customers,  to  be  exchanged 
for  articles  of  fixed  value  at  the  option  of  the  holder  of  the 
stamp/" 

A  statute  making  it  a  misdemeanor  to  issue  trading  stamps 
unless  they  bear  upon  their  face  the  amount  for  which  they 
can  be  redeemed  in  cash,  is  imconstitutional. 

In  Massachusetts  a  statute  prohibiting  the  use  of  stamps  is 
limited  to  the  use  of  such  stamp  in  a  way  that  involves  some 
chance ;  in  such  case  the  issuing  of  stamps  is  illegal/^  In  Mary- 
land a  statute  making  it  unlawful  to  issue  trading  stamps  which 
are  not  redeemable  out  of  any  articles  that  are  certain  and 
known  to  the  purchaser  at  the  time  of  his  purchase  is  valid 
though  a  provision  of  it  prohibiting  the  redemption  at  any  other 
place  than  that  of  the  purchase  is  invalid."  In  case  there  is  no 
statute  prohibiting  the  issue  of  trading  stamps,  their  use  is  not 
a  lottery  or  gift  enterprise  and  there  is  nothiug  ille^-al  in  such 


§  271.  Gratuitous  distribution  o£  property  by  lot  or  chance. 
—  The  gratuitous  distribution  of  money  or  property  by  lot  has 
never  prevailed  to  such  an  extent  as  to  require  police  regulation 
at  the  hands  of  the  State.  The  history  of  lotteries  both  in  Eng- 
land and  in  the  United  States  shows  that  they  have  been  schemes 
for  the  distribution  of  money  or  property  by  lot  in  which 
chances  were  sold  for  money,  either  directly  or  through  some 
cunning  device.  The  element  of  a  valuable  consideration, 
parted  with,   directly  or  indirectly,  by  the  purchaser  of  the 

11.  State  V.  Dalton,  22  R.  I.  77,  15.  State  v.  Shugart,  138  Ala. 
46  A.  234,  48  L.  R.  A.  775,  84  Am.  86,  3.5  So.  28.  See,  also,  Winston 
St.  Rep.  818.  V.  Beeson   (N.  Car.)',  47  S.  E.  457. 

12.  People  V.  Dycker.  72  App.  See  Whether  the  Giving  of  Trading 
Div.  309,  76  N.  Y.  S.  111.  Stamps    is    Subject    to    Prohibitory 

13.  Commonwealth  v.  Sisson,  Legislation,  57  Cent.  L.  Jour.  421. 
178  Mass.  578,  60  N.  E.  385.  The  Latest  Development  of  the  In- 

14.  State  V.  Hawkins,  75  Md.  teratate  Commerce  Power — The  Lot- 
133,  51  A.  850,  93  Am.  St.  Pvcp.  tery  Tickets  Case — 1  Mich.  L.  Re- 
328.  view,  615. 

279 


§§    271,  272  CONTRACTS    IN    VIOLATION    OF    LAW.  Ch.    7 

chance,  iimst  enter  into  the  transaction  in  order  to  constitute 
a  lottery.^'^  And  so  acts  that  declare  that  no  person  shall  give 
awaj  anything  to  a  purchaser  of  goods,  wares  or  merchandise, 
as  an  inducement  to  make  the  purchase,  are  invalid.  Because 
such  regulation  of  trade  is  unlawful,  as  it  is  not  for  the  welfare 
of  the  people,  but  oppression  and  burdensome  to  the  people.^^ 
There  is  no  law  which  prohibits  the  gratuitous  distribution  of 
one's  property  by  lot  or  chance.  If  the  distribution  is  a  pure 
gift  or  bounty,  and  not  in  name  or  pretense  merely,  which  is 
designed  to  evade  the  law — if  it  is  entirely  unsupported  by  any 
valuable  consideration  moving  from  the  taker — there  is  nothing 
in  this  mode  of  conferring  it  which  is  violative  of  the  policy 
of  the  statute  condemning  lotteries,  or  gaming.^* 

§  272.  Sale  of  lottery  tickets. —  It  is  made  illegal  to  sell  lot- 
tery tickets.  So  a  principal  cannot  recover  money  received  by 
his  alleged  agent  from  the  sale  of  lottery  tickets  delivered  to  the 
latter  by  the  former  under  an  agreement  that  he  shall  account 
for  the  proceeds.^  And  so  where  the  proprietor  of  a  "  guessing 
contest  "  has  received  the  money  paid  for  guessing,  he  cannot  be 
compelled  to  pay  it  to  the  winner.^  So,  where  clubs  of  forty 
persons  each  are  formed  by  a  merchant-tailor  for  the  dispo- 
sition of  suits  of  clothing,  each  of  the  stipulated  value  of  $40, 

16.  State  V.  Munford,  73  Mo.  747 ;  U.  S.  746,  4  S.  Ct.  652 ;  Toledo,  etc., 
Hull  V.  Ruggles,  56  N.  Y.  424;  Co.  v.  Jacksonville,  67  111.  46; 
Thomas  v.  People,  59  111.  160 ;  Long  v.  State,  74  Md.  565,  22  A.  4, 
Dunn  V.  People,  40  111.  465 ;  United  12  L.  R.  A.  425,  28  Am.  St.  Rep. 
States  V.  Olney,  1  Deady,  D.  C.  461 ;  268. 

Bell  V.  State,  5  Sneed  (Tenn.),  507;  18.  United    States    v.    Olney,    1 

Buckalew  v.  State,  Q2  Ala.  334,  34  Deady,  D.  C.  461,  1  Abb.  C.  C.  2^5; 

Am.    Rep.    22;     Governor    v.    Art  Ehrgatt  v.  Mayor,  95  N.  Y.  264,  48 

Union,  7  N.  Y.  228;  Yellow  Stone  Am.    Rep.    622;    Commonwealth   v. 

Kit  V.  State,  88  Ala.  196,  7  So.  338,  Thacher,  97  Mass.  583,  93  Am.  Dec. 

7  L.  R.  A.  559  and  note,  16  Am.  St.  125;   Cross  v.  People,  18  Colo.  221, 

Rep.  38  and  note;  Long  v.  State,  74  32  P.  821,  36  Am.  St.  Rep.  292. 

Md.  565,  22  A.  4,  12  L.  R.  A.  425,  1.  Mexican    International    Bank- 

28  Am.  St.  Rep.  268.  ing    Co.   v.    Lichtenstein,    10    Utah, 

17.  People  V.  Gillson,  109  N.  Y.  338,  37  P.  574;  Udall  v.  Metcalf,  5 
389,   17  N.  E.  343,  4  Am.  St.  Rep.  N.  H.  396. 

465;  In  re  Jacobs,  98  N.  Y.  98,  56  2.  Barclay  v.  Pearson    (1893h  2 

Am.  Rep.   636  and  note;   Butchers'        Ch.  154. 
Union  Co.  v.  Crescent  City  Co.,  Ill 

280 


Ch,  7      WAGERS  AND  GAMING  CONTRACTS.      §§  272,  273 

by  lot,  under  nominal  contracts  of  purchase,  the  price  to  be 
paid  in  weekly  installments  of  $1  each,  such  payments  entitling 
the  holders  of  tickets  to  participate  in  weekly  drawings  by  lot, 
with  the  chance  of  securing  goods  of  the  value  of  $40  at  any 
drawing,  without  further  additional  payments  than  the  weekly 
installments  paid,  the  transaction  is  a  lottery  and  illegal.^  So, 
sending  lottery  tickets  from  one  State  to  another  to  be  sold  or 
used  is  interstate  commerce,  can  be  regulated  by  Congress. 
Therefore,  Congress  can  prohibit  the  carriage  of  lottery  tickets 
from  one  State  to  another.'*  And  an  anti-policy  law  will  be 
upheld  which  makes  the  possession  by  any  person,  other  than 
an  oflScer,  of  any  paper  or  document  representing  a  chance  or 
interest  in  a  game,  commonly  called  "  policy,"  presumptive 
evidence  of  wrongful  possession.^ 

§  273.  Lottery  company  chartered  by  the  Legislature. — 
The  legislature  cannot,  by  chartering  a  lottery  company,  defeat 
the  will  of  the  people  of  the  State  authoritatively  expressed  in 
relation  to  the  continuance  of  such  business  in  their  midst.  Be- 
cause lotteries  are  a  species  of  gambling  and  wrong  in  their  in- 
fluence, the  right  to  suppress  them  is  governmental,  to  be  exer- 
cised at  all  times  by  those  in  power,  at  their  discretion.  Any 
one,  therefore,  who  accepts  a  lottery  charter  does  so  with  the 
implied  nnderstanding  that  the  people,  in  their  sovereign  ca- 
pacity and  through  their  properly  constituted  agencies,  may  re- 
sume it  at  any  time  when  the  public  good  shall  require,  whether 
it  be  paid  for  or  not.  All  that  one  can  get  by  such  charter  is  a 
suspension  of  certain  governmental  rights  in  his  favor  subject  to 
withdrawal  at  will.  He  has,  in  legal  effect,  nothing  more  than 
a  license  to  enjoy  the  privilege  on  the  terms  named  for  the  speci- 
fied time,  unless  it  be  sooner  abrogated  by  the  sovereign  power 
of  the  State.^ 

3.  State  V.  Moren,  48  Minn.  555,  S.  585;  People  v.  Adams,  176  N.  Y. 
51  N.  W.  G18.  351,  68  N.  E.  636,  98  Am.  St.  Rep. 

4.  Champion  v.  Ames,  188  U.  S.        675  and  note. 

321.  23  S.  Ct.  321,  26  Nat.  Cor.  Rep.  1.  Stone  v.  Mississippi,  101  U.  S. 

76.  814;   Douglas  v.  Kentucky,   168  U. 

5.  Adams  v.   New  York,    192   U.        8.  488,  18  S.  C1;.  199. 

281 


p^RT  m. 


CONTRACTS  AGAINST  PUBLIC  POLICY. 


(283) 


PJVRT    III. 

CHAPTER  VIII. 

What  is  Public  Policy. 


ARTICLE  I. 

The  General  Doctrine. 

Section  274.  Public  Policy — How  Determined. 

275.  Defense  of  Public  Policy. 

276.  Stipulation  tliat  False  Representations    Shall  not  Avoid  tns 

Contract. 

277.  Contracts  for  Welfare  of  Children. 

278.  Contracts  Payable  in    Gold  Coin. 

§  274.  Public  policy — How  determined. — The  public  policy 
of  nations  must  be  determined  by  its  constitution,  laws,  and 
judicial  decisions.^  And  as  a  nation  advances  in  civilization, 
public  policy  may  mean  more  tban  at  the  inception  of  govern- 
ment. Take  the  subject  of  lotteries  as  an  example.  Formerly 
in  many  States  lotteries  were  legitimate  and  the  sale  of  tickets 
was  sanctioned.  Schools  and  colleges  were  established  by  funds 
received  from  the  traffic  of  lottery  tickets,  l^ow  such  concerns 
are  prohibited  by  all  the  States. 

At  the  beginning  of  the  last  century  the  Federal  government 
ran  a  lottery  and  the  drawings  were  supervised  by  Washington 
and  Adams.  Even  religious  bodies  entered  into  lottery  schemes 
to  build  their  churches.  This  traffic  has  fallen  within  the  police 
power  of  the  nation,  and  Congress,  acting  for  the  nation,  has  de- 
clared a  previously  lawful  business  unlawful,   and  prohibits 

1.  United  States  v.  Freight  Asso.,  v.  Girard,  2  How.  (U.  S.)  127,  197; 
166  U.  S.  290,  17  S.  Ct.  546;  Vidal        Swann  v.  Swann,  21  Fed.  Rep.  299. 

285 


§    274  CONTRACTS    AGAINST    PUBLIC    POLICY.  Gh.    8 

it  for  all  time.  All  this  is  because  the  needs  of  our  government 
demand  it ;  and  this  prohibition  cannot  be  overestimated. 

But  it  must  be  understood  that  the  rules  which  say  a  given 
contract  is  void,  as  being  against  public  policy,  must  not  be  ex- 
tended arbitrarily,  because,  if  there  is  one  thing  which,  more 
than  another,  public  policy  requires,  it  is  that  men  of  full  age 
and  competent  understanding  shall  have  the  utmost  liberty  to 
contract,  and  that  their  contracts  when  entered  into  freely  and 
voluntarily  shall  be  held  valid,  and  shall  be  enforced  by  courts 
of  justice.^ 

The  common  law  will  not  permit  individuals  to  obligate  them- 
selves by  a  contract,  either  to  do  or  not  to  do  anything,  when 
the  thing  to  be  done  or  omitted  is  in  any  degree  clearly  injurious 
to  the  public  f  and  a  contract  is  not  void  as  against  public  policy 
unless  it  is  injurious  to  the  interest  of  the  public  or  contravenes 
some  established  interest  of  society.* 

Public  policy,  in  the  administration  of  the  law  by  the  courts, 
is  essentially  different  from  what  may  be  public  policy  in  the 
view  of  the  legislature.  With  the  legislature  it  may  be,  and 
often  is,  nothing  more  than  expediency.  The  public  policy 
which  dictates  the  enactment  of  a  law  is  determined  by  the  wis- 
dom of  the  legislature.^  But  in  the  absence  of  any  statute  for- 
bidding the  making  of  certain  contracts,  a  court  can  find  a  con- 
tract void  because  it  has  a  tendency  to  injure  the  public,  or  is 
against  the  public  good.  To  be  void  it  must  be  inconsistent  with 
sound  policy  and  good  morals  as  to  the  consideration  or  thing 
to  be  done.^ 

Where  the  transaction  is  nothing  more  or  less  than  the  accept- 
ance by  the  party  of  a  bribe  to  perform  his  duties  in  a  manner 

2.  Printing  Numerical  Register--  4.  Peterson  v.  Christensen,  26 
ing  Ck>.  V.   Sampson,  L.  R.   19  Eq.        Minn.  377,  4  N.  623. 

Cas.    462,    465;    Hulse   v.   Machine  5.  Enders  v.  Enders,  164  Pa.  St. 

Co.,  65  Fed.  Rep.  8B4,  13  C.  C.  A.  266,  30  A.  129,  27  L.  R.  A.  56  and 

180,    25    U.    S.    App.    239;    In    re  note,  44  Am.  St.  Rep.  598. 

Garcelon,   104  Cal.  590,  38  P.  413,  6.  Trist  v.   Child,   21   Wall.    (U. 

32  L.  R.  A.  595  and  note.  S.)   448. 

3.  Chappel      v.      Brockway,      21 
Wend.   (N.  Y.)   159. 

286 


Ch.    8  WHAT    IS    PUBLIC    POLICY.  §    274 

desired  by  the  person  who  gives  the  bribe,  it  is  void  as  against 
public  policy.^  But  a  doubtful  matter  of  public  policy  is  not 
sufficient  to  invalidate  a  contract.  An  agreement  is  not  void  on 
this  ground  unless  it  expressly  and  unquestionably  contravenes 
public  policy,  and  is  manifestly  injurious  to  the  interest  of  the 
State  f  if  it  is  then  it  is  void.^  But  if  a  contract  is  valid  when 
made,  it  is  not  affected  by  a  change  in  the  public  policy  of  the 
State.^° 

The  public  policy  of  the  government  is  to  be  found  in  its 
statutes,  and  when  they  have  not  directly  spoken,  then  in  the 
decisions  of  the  courts  and  the  constant  practice  of  the  govern- 
ment officials ;  but  when  the  law-making  power  speaks  on  a  par- 
ticular subject,  over  which  it  has  constitutional  powers  public 
policy  in  such  a  case  is  what  the  statute  enacts.  And  a  con- 
tract or  combination  made  in  violation  of  a  law  is  void,  what- 
ever may  have  been  theretofore  decided  by  the  courts  to  have 
been  the  public  policy  of  the  country  on  the  subject. ^^  And  a 
contract  which  endeavors  to  modify  the  statute  of  limitations  is 
void,  because  it  is  against  public  policy. ^^  And  an  agreement 
that  an  attorney  shall  have  part  of  the  alimony  awarded  his 
client  is  void  as  it  contravenes  public  policy,  and  is  also  non- 
assignable." 

In  the  Lottery  Case^*  the  United  States  Supreme  Court  held 
that  the  traffic  in  lottery  tickets  contravenes  public  policy.  If 
Congress  has  power  to  declare  a  traffic  prejudicial  to  the  public 
morals  and,  therefore,  unlawful,  it  has  the  power  to  declare  a 

7.  Harrington  v.  Dock  Co.,  3  Q.  Cal.  86,  41  P.  783,  29  L.  R.  A.  751, 
B.  Div.  549;   West  v.  Camden,   135        50  Am.  St.  Rep.  17. 

U.  S.  507,  10  S.  Ct.  832;   Fuller  v.  11.  United     States     v.     Freight 

Dawe,   18  Pick.    (Mass.)   472;   Lum  Asso.,  106  U.  S.  290,  17  S.  Ct.  540. 

V.  MeEwen,  56  Minn.  278,  57  N.  W.  12.  Miller  v.   Ins.   Co.,   54   Neb. 

662;    Smith   v.    Humphrey,   88   Me.  121,  74  X.  W.  416,  69  Am.  St.  Rep. 

345.  709. 

8.  McCandless  v.  Steel  Co.,  152  13.  Lynde  v.  Lynde,  64  N.  J. 
Pa.  St.  139,  25  A.  579;  Vocke  v.  Eq.  736,  52  A.  694,  97  Am.  St.  Rep. 
Peters,  58  111.  App.  338.  692. 

9.  Meridian  Water  Co.  v.  Schul-  14.  Champion  v.  Ames,  188  U. 
horr   (Miss.),  17  So.  167.  S.  321,  23  S.  Ct.  321. 

10.  Stephens  v.  Railroad  Co.,  109 

287 


§    274  CONTRACTS    AGAINST    PUBLIC    POI.ICY.  Cll.    8 

traffic  prejudicial  to  public  interests  and,  therefore,  illegal,  by 
reason  of  oppression  of  the  consumer  by  combinations  whicli 
stifle  competition.  If  Congress  has  power  to  condemn  inter- 
state traffic  because  it  is  immoral  and  prejudicial  to  public  in- 
terests, it  also  has  the  power  to  declare  it  prejudicial  for  any 
other  purpose,  such  as  the  interstate  transportation  of  all  com- 
modities, the  product  of  combinations.  The  Lottery  Case  is 
confined  only  to  such  traffic  as  public  policy  condemns  as  im- 
moral or  prejudicial  to  health,  and  left  undecided  the  question 
whether  such  prohibition  would  be  justified  if  the  business  were 
not  inherently  immoral  or  unwholesome  but  prejudicial  to  the 
public  welfare  by  reason  of  economic  consideration,  such  as  the 
stifling  of  competition. 

So,  contracts  against  the  morals  of  the  people  are  void.  At 
common  law  the  keeping  of  a  house  of  prostitution  is  an  indict- 
able offense.  Such  places  are  regarded  with  so  much  disfavor, 
that  not  only  the  keeper  of  the  house,  but  also  a  landlord,  know- 
ingly leasing  the  same  for  the  purpose  of  bawdry,  is  held  to  be 
guilty  of  a  criminal  offense  when  the  house  is  actually  put  to  im- 
moral use.^^  So,  where  a  lessor  of  the  premises  knows  or  ought 
to  know  that  they  will  be  used  for  unlawful  purposes,  the  lease 
is  void,  and  the  obligation  of  the  lessee  to  pay  will  not  be  en- 
forced by  the  court. ^^  An  agreement  which  contravenes  any 
statute  for  the  protection  of  public  morals  is  void.^^ 

So,  an  agreement  in  consideration  of  future  illicit  cohabita- 
tion between  man  and  woman  is  void,  and  past  cohabitation  does 
not  form  an  adequate  consideration  not  under  seal,  even  if  it 

15.  Commonwealth  v.  Harring-  bard  v.  Moore,  24  La.  Ann.  591; 
ton,  3  Pick.  (Mass.)  26;  Dougherty  Lyman  v.  Townshend,  24  La.  Ann. 
V.  Seymour,  16  Colo.  289,  26  P.  823.  625,  13  Am.  Rep.  128;  Mahood  v. 
See,  also,  Niver  v.  Best,  10  Barb.  Teazle,  26  La.  Ann.  108,  21  Am. 
(N.  Y.)  369;  Pearce  v.  Brooks,  L.  Rep.  546;  Sampson  v.  Townshend, 
R.  1  Exch.  213;  Shankel  v.  Moffatt,  25  La.  Ann.  78. 

53  III.  App.  382;   Smith  v.  White,  17.  Ritchie    v.    Smith,    6    C.    B. 

L.  R.  1  Eq.  626.  462 ;    Cowan  v.   Milbourn,   L.   R.   2 

16.  Ernst  v.  Crosby,  140  N.  Y.  Exch.  230;  Compare  O'Brien  v. 
364,   35   N.   E.   603;    Compare  Hul-  Prietenbach,  1  Hilt.   (N.  Y.)   304. 

288 


Cb.    8  .  WHAT   IS   PUBLIC    POLICY.  §§    274,  275 

does  when  made  under  seal  ;^^  and  it  is  immaterial  whether  the 
contract  is  by  parol  or  under  seal,  if  it  be  for  further  inter- 
course ;  if  under  seal  the  illegality  of  the  consideration  will  avoid 
the  contract;  so  no  contract  can  be  made  for  future  illicit  co- 
habitation.^^ 

§  275.  Defense  of  public  policy  —  Waving  the  statute  of 
limitations  —  Marriage  brokerage. —  The  defense  of  public 
policy  does  not  proceed  so  much  upon  the  idea  of  relief  to  an 
innocent  party  as  protection  to  the  public  by  withholding  legal 
remedies  from  the  party  contemplating  or  practicing  an  im- 
position. It  would  be  a  strange  rule  of  law  which  would  extend 
relief  to  a  particeps  criminis,  and  withhold  relief  from  an  inno- 
cent party  who  seeks  to  avail  himself  of  its  protection  when  the 
imposition  is  discovered.^  But  a  person  who  has  derived  benefit 
from  a  contract  which  is  void  as  against  public  policy  is  not 
estopped  thereby  to  defend  against  such  contract  when  it  is 
sought  to  be  enforced  against  him.^ 

In  some  States  a  party  may  waive  the  statute  of  limitations 
at  the  time  he  signs  a  note,  and  such  action  is  not  against  public 
policy.^ 

The  doctrine  is  that  marriage  brokerage  contracts  are  void  in 
this  country  and  in  England.  The  interference  by  one  upon  an 
agreement  to  receive  a  moneyed  or  valuable  consideration  to  in- 

18.  Wallace  V.  Rappleye,  103  111.  110;  Holman  v.  Johnson,  Cowp. 
229 ;  Trovinger  v.  McBurney,  5  Cow.  34 ;  Church  v.  Proctor,  66  Fed.  Rep. 
(N.  Y.)  253;  Gray  v.  Mathias,  5  240,  13  C.  A.  A.  426,  33  U.  S.  App. 
Ves.  286.  1. 

19.  Dreeman  v.  Douglass,  102  2.  Brown  v.  Bank,  137  Ind.  655, 
111.  341,  40  Am.  Rep.  595;  Hanks  37  N.  E.  158,  24  L.  R.  A.  206; 
V.  Nagles,  54  Cal.  51,  35  Am.  Rep.  Hutchinson  v.  Weldin,  114  Ind.  80, 
67  and  note;  Baldy  v.  Stratton,  11  15  N.  E.  804;  Wheeler  v.  Wheeler, 
Pa.  St.  316;  Walker  V.  Gregory,  36  5  Lans.  (N.  Y.)  355;  Snyder  v. 
Ala.  180;  Massey  v,  Wallace,  32  S.  Willey,  33  Mich.  483. 

Car.  149,  10  S.  E.  937 ;  De  Sobry  v.  3.  State  Trust  Co.  v.  Sheldon,  68 

De  Laistre,  2  Har.  &  J.   (Md.)   191,  Vt.    259,    35    A.    177;    Bridges    v. 

3  Am.  Dec.  535.  Stephens,    132   Mo.    524,    34    S.    W. 

1.  Cowan   V.    Milbourn,   2    Exch.  555. 
230;  Spotswood  v.  Barrow,  5  Exch. 

289 


§    275  CONTRACTS    AGAINST    PUBLIC    POLICY.  Ch,    8 

duce  or  bring  about  a  marriage  between  others  has  always  been 
held  void.*  Hence,  a  contract  made  by  an  aged  man  with  his 
grandson,  that  if  the  latter  will  aid  the  grandfather  in  inducing 
a  young  lady  to  marry  him,  the  grandfather  will  deliver  to  the 
grandson  a  note  he  holds  against  him,  is  against  public  policy 
and  is  void.^ 

Contracts  made  with  "matrimonial  bureaus"  are  illegal; 
and  while  such  contracts  are  illegal,  yet  the  courts  will  aid  a 
party  who  has  patronized  such  a  business  by  relieving  him  or 
her  from  all  contracts  made,  and  will  grant  restitution  of  any 
money  paid  or  property  transferred,  on  the  principle  that  he  is 
not  equally  guilty.^  Where  a  party  carries  on  a  business  of 
promoting  marriage,  the  natural  tendency  of  such  a  business  is 
immoral  and  it  would  be  so  clearly  the  policy  of  the  law  to  sup- 
press it,  and  public  interest  would  be  so  greatly  promoted  by  its 
suppression,  that  the  courts  will  not  hesitate  to  aid  the  party 
who  has  patronized  such  a  business  by  relieving  him  or  her  from 
all  contracts  made,  and  grant  restitution  of  any  money  paid  or 
property  transferred.  In  that  way  only  could  the  policy  of  the 
law  be  enforced  and  public  interest  promoted.^  The  question 
of  this  kind  must  always  be  whether  the  parties  are  equally 
guilty.  Cases  may  arise  where  the  court  would  be  justified  in 
holding  as  a  matter  of  law  that  neither  party  had  any  remedy, 
as  where  there  is  an  agreement  between  two,  having  for  its  pur- 
pose the  marriage  of  one  to  a  third  party,  in  which  case  the 
parties  would  be  clearly  in  pari  delicto.  So  if  two  parties  enter 
into  a  partnership  to  carry  on  negotiations  for  the  promotion  of 
marriage,  neither  party  would  have  relief  in  court.^ 

4.  Johnson  v.  Hunt,  81  Ky.  321;  8.  Duval  v.  Wellman,  124  N.  Y. 
Hall  V.  Potter,  3  Lev.  411;  Keat.  v.  156,  26  N.  E.  343;  Kearley  v.  Thorn- 
Allen,  2  Vein.  588.  son,    24    Q.    B.    D.    742,   criticizing 

5.  Johnson  v.  Hunt,  81  Ky.  321.  Taylor  v.  Bowers,  1  Q.  B.  D.  291, 

6.  Duval  V.  Wellman,  124  N.  Y.  wliere  it  is  held  that  if  money  is 
156,  26  N.  E.  343;  Bmith  v.  Brun-  paid  tor  an  illegal  purpose  the  per- 
ing,  2  Vern.  392;  Goldsmith  v.  son  who  has  paid  the  money  may 
Bruning,  1  Eq.  Cas.  Abr.  89;  Tay-  recover  it  back  before  the  illegal 
lor  V.  Bowers,  1  Q.  B.  D.  291.  purpose     is     completed.       Compare 

7.  Duval  V.  Wellman,  124  N.  Y.  Glanville  v.  Jennings,  3  Rep.  in  Ch. 
156,  26  N.  E.  343.  31. 

290 


Ch.    8  WHAT   IS   PUBLIC   POLICY.  §§    275,  276 

But  the  courts  make  a  distinction  as  to  the  party  paying 
money  or  other  property,  to  a  matrimonial  broker,  and  hold 
that  the  customer  is  not  equally  guilty  with  the  broker,  and 
hence,  the  customer  may  recover  back  the  money  paid.^ 

§  276.  Stipulation  that  false  representations  shall  not  avoid 
the  contract. —  A  stipulation  in  a  contract  that  false  represen- 
tations used  in  procuring  it  shall  not  affect  its  validity,  is  itself 
invalid  and  has  no  effect  whatever.^  So,  where  one  party  to  a 
contract  has  perpetrated  a  fraud  upon  the  other  by  means  of 
which  the  other  was  induced  to  enter  into  the  contract,  the  latter 
cannot  be  precluded  from  seeking  redress  by  a  provision  in  the 
contract  purporting  to  grant  to  the  former  immunity  against  the 
consequences  of  any  fraud.^  No  authority  can  be  found  that  a 
party  who  had  perpetrated  a  fraud  upon  another,  may,  neverthe- 
less, contract  with  him  in  the  very  instrument  by  means  of  which 
it  was  perpetrated,  for  immunity  against  its  consequences.  Pub- 
lic policy  and  morality  are  both  ignored  if  such  an  agreement  can 
be  given  effect  in  a  court  of  justice.  Such  a  clause  of  immunity 
from  fraudulent  representations  cannot  be  separated  from  the 
transaction  in  which  it  originated.  It  is  tainted  with  the  same 
vice  and  must  share  the  same  condemnation.  This  doctrine  is 
sound  and  supported  by  analogy,  and  must  be  sustained.^ 

The  clause  cannot  be  given  any  greater  effect  than  if  it  had 
been  written  upon  a  separate  piece  of  paper  after  the  execution 
of  the  contract  and  signed  by  the  parties.  It  cannot  operate  by 
way  of  estoppel  for  the  reason  that  the  statements  were  false 
to  the  party's  knowledge,  who  made  them.     A  mere  device  of 

9.  Duval  V.  Wellman,  124  N.  Y.  Howell,  44  N.  Y.  398;   Shapley  v. 

156,  26  N.  E.  343.  Abbott,  42  N.  Y.  443,  1  Am.  Rep. 

1.  Hofflin  V.  Moss,  67  Fed.  Rep.  548;  Hutchins  v.  Hebbard,  34  N. 
440,  14  C.  C.  A.  459,  32  U.  S.  App.  Y.  24;  Universal  Fashion  Co.  v. 
200.  Spencer,  64   Hun    (N.  Y.),  293,   19 

2.  Bridger  v.  Goldsmith,  143  N.  N.  Y.  S.  62;  Kneetle  v.  Newcomb, 
Y.  424,  38  N.  E.  458.  22  N.  Y.  249,  78  Am.  Dec.  186;  Bell 

3.  Smyth  v.  Munroe,  84  N.  Y.  v.  Leggatt,  8  N.  Y.  176,  59  Am. 
361;  Steel  v.  Smelting  Co.,  106  U.  Dec.  476;  Sedgwick  v.  Stanton,  14 
S.    447,    1    S.    Ct.    389;    Wilcox   v.  N.  Y.  289. 

291 


§§  2'76-2'78     CONTRACTS  AGAINST  PUBLIC  POLICY,     Ch.  S 

a  guilty  party  to  a  contract  intended  to  shield  himself  from  the 
results  of  his  own  fraud,  practiced  upon  the  other  party,  cannot 
be  set  up  as  an  equitable  estoppel.* 

§  277.  Contracts  for  welfare  of  children. —  A  contract  of  a 
parent,  by  which  he  bargains  away  for  a  consideration  the  cus- 
tody of  his  child  to  a  stranger,  he  attempting  to  relieve  himself 
from  all  parental  obligations,  and  place  the  burden  on  another, 
who  accepts  it,  without  natural  affection  or  moral  obligation  to 
prompt  to  the  performance  of  parental  duty,  but  only  because 
of  a  bargain,  is  void,  as  against  public  policy.  Such  a  contract 
would  be  a  mere  sale  of  the  child  for  money.^  But  where  pa- 
rental solicitude  and  affection  are  not  extinguished,  and  where 
the  welfare  of  the  child  is  intended  to  be  promoted,  a  contract 
by  parents  in  reduced  circumstances  and  grand-parents  of  good 
character  and  ample  means,  that  the  grandparents  shall  bring 
up  the  child,  is  not  against  public  policy.®  And  it  has  been  de- 
cided that  contracts  of  the  parents  are  not  against  public  policy, 
although  made  with  strangers  to  the  blood ;  because  of  the  special 
facts,  and  on  the  ground  that  the  contract  was  for  the  welfare  of 
the  child."^ 

§  278.  Contracts  payable  in  gold  coin. — Contracts  made  pay- 
able in  gold  coin  of  the  United  States  are  not  against  public 
policy  and  are  valid.^ 

No  transaction  of  commerce  or  business,  or  obligation  for 

4.  Bridger  v.  Goldsmith,  143  N.  1.  Brown  v.  Rodes,  7  Wall.  (U. 
Y.  424,  38  N.  E.  458.  S.)    229;    Trebilcock  v.   Wilson,    12 

5.  Chapsky  v.  Wood,  26  Kans.  Wall.  (U.S.)  687;  Belford  v.  Wood- 
650,  40  Am.  Rep.  321  and  note;  ward,  158  111.  122,  41  N.  E.  1092,  29 
State  V.  Clover,  16  N.  J.  L.  419;  L.  R.  A.  593  and  note.  See,  also, 
Johnson  v.  Terry,  34  Conn.  259.  Judson  v.  Bessemer,  87  Ala.  240,  6 

6.  Enders  v.  Enders,  164  Pa.  St.  So.  267,  4  L.  R.  A.  742;  Dennis  v. 
266,  30  A.  129,  27  L.  R.  A.  56  and  Moses,  18  Wash.  5B7,  52  P.  333; 
note,  44  Am.  St.  Rep.  598.  Parson    v.   Louisville,    97    Ky.    119, 

7.  Van  Dyne  v.  Vreeland,  11  N.  J.  30  S.  W.  17;  Blanck  v.  Sadlier,  153 
Eq.  371;  Hill  v.  Gomme,  1  Beav.  N.  Y.  551,  47  N.  E.  920;  Murphy  v. 
641.  See,  also,  Bently  v.  Terry,  59  San  Luis  Obispo,  119  Cal.  624,  51 
Ga.  555,  27  Am.  Rep.  399.  P.  1085,  39  L.  R.  A.  444. 

292 


Ch.    8  WHAT    IS    PUBLIC    POLICY.  §    278 

the  payment  of  money  that  is  not  immoral  in  its  character  and 
which  is  not,  in  its  manifest  purpose,  detrimental  to  the  peace, 
good  order  and  general  interest  of  society,  can  be  declared  or 
held  to  be  invalid  because  enforced  or  made  payable  in  gold 
<;oin  or  currency  when  that  is  established  or  recognized  by  the 
government.^ 

And  any  acts  by  State  authority  impairing  or  lessening  the 
validity  or  negotiability  of  obligations  thus  made  payable  in 
gold  coin  are  violative  of  the  laws  and  constituton  of  the  United 
States.^ 

The  agreement  to  pay  coin  is  as  much  of  the  consideration  as 
the  agreement  to  pay  at  all,  and  the  presumption  is  that  an 
ample  equivalent  has  been  received  for  the  promise.  The  par- 
ties are  competent  to  contract,  the  contract  is  not  against  public 
policy,  it  is  not  prohibited  by  law,  it  is  payable  in  a  lawful  kind 
of  money,  and  is  a  lawful  contract.^ 

Contracts  to  pay  gold  coin  are  simply  engagements  for  the 
delivery  of  a  specific  commodity,  or  to  deliver  a  certain  weight 
of  standard  gold,  to  be  ascertained  by  a  count  of  coins,  each  of 
which  is  certified  to  contain  a  definite  proportion  of  that  weight. 
It  is  not  distinguishable  in  principle  from  a  contract  to  deliver 
an  equal  weight  of  bullion  of  equal  fineness.^ 

Under  the  doctrine  of  the  courts  Congress  will  have  no  au- 
thority to  legislate  against  such  contracts,  for  such  contracts 
are  an  engagement  for  the  delivery  of  a  specific  commodity. 
Congress  cannot  interfere  with  and  assume  to  regulate  the 
business  dealings  of  citizens  except  under  some  power  ex- 
pressly granted  by  the  Federal  constitution.^    iJsTeither  can  the 

2.  Woodruff   V.    Mississippi,    162  Skinner  v.  Santa  Kosa,  107  Cal.  464, 

U.  S.  291,  16  S.  Ct.  820;  Wallace  v.  40  P.  742. 

Eldridge,  27  Cal.  498;  Carpenter  v.  3.     Woodruflf  v.  Mississippi,   162 

Atherton,  25  Cal.  564;   Harding  v.  U.  S.  291,  16  S.  Ct.  820. 

Cowing,    28    Cal.    213;    Julliard   v.  4.  Carpenter  v.  Atherton,  25  Cal. 

Greenman,  110  U.  S.  421,  4  S.  Ct.  564. 

122;    Hagar   v.    Reclamation   Dist.,  5.  Brown  v.  Rodes,  7  Wall.    (U. 

Ill  U.  S.  701,  4  S.  Ct.  663;  Belford  S.)  229,  250. 

V.  Woodward,  158  111.  122,  41  N.  E.  6.  Brown  v.  Rodes,  7  Wall.    (U. 

1097,  29  L.   R.  A.   593   and  note;  S.)   229. 

293 


278 


CONTRACTS    AGAINST    PUBLIC    POLICY. 


Ch.    8 


State  legislate  to  regulate  such  contracts,  as  such  legislation 
would  be  in  violation  of  the  Federal  constitution.^ 

There  are  State  decisions,  rendered  before  the  United  States 
Supreme  Court  decision,  which  hold  that  a  contract  payable  in 
gold  may  be  discharged  by  payment  of  any  legal  tender  money 
of  the  same  nominal  value.^  But  the  weight  of  authority  is 
that  the  contract  must  be  paid  in  gold  when  so  stipulated,  as 
shown  by  cases  already  cited.  If  a  party  insists  upon  payment 
of  gold  coin  as  stipulated  in  his  contract,  if  the  State  court  de- 
cides against  him,  he  can  appeal  to  the  United  States  Supreme 
Court,  because  such  judgment  is  a  denial  of  a  right,  privilege, 
and  immunity  claimed  under  the  constitution  and  statutes  of 
the  United  States  f  hence,  the  final  arbiter  is  the  United  States 
Supreme  Court,  which  has  decided  that  such  contracts  must  be 
paid  in  gold.  Contracts  payable  in  gold  coin  or  other  money  are 
valid  and  not  against  public  policy.  To  prohibit  such  contracts 
is  also  an  unwarranted  interference  with  liberty  of  contract 
which  is  protected  alike  by  State  and  Federal  constitutions." 


7.  Woodruff  V.  Mississippi,  162 
U.  S.  291,  16  S.  Ct.  820. 

8.  Gallious  v.  Pierce,  18  La.  Ann. 
10;  Frotliingham  v.  Morse,  45  N. 
H.  545;  Henderson  v.  MePike,  35 
Mo.  255;  Appel  v.  Waltman,  38  Mo. 
194;  Eiley  v.  Sharp,  1  Bush.  (Ky.), 
348;  Laughlin  v.  Harvey,  52  Pa. 
St.  9;  Brown  v.  Welch,  26  Ind.  116; 
Buchegger  v.  Schultz,  13  Mich. 
420;    Mervine   v.    Sailer,    5    Phila. 


(Pa.) 422;  Bank  v.  Burton,  27  Ind. 
426. 

9.  Bronson  v.  Eodes,  7  Wall.  (U. 
S.)  229;  Trebilcock  v.  Wilson,  12 
Wall.  (U.  S.)  687;  Butler  v.  Hor- 
witz,  7  Wall.  (U.  S.)  258;  Bronsan 
V.  Kimpton,  8  Wall.  (U.  S.)  444; 
Woodruff  V.  Mississippi,  162  U.  S» 
293,  16  S.  Ct.  820. 

10.  Allgeyer  v.  Louisiana,  165- 
U.  S.  578,  17  S.  Ct.  27. 


294 


Ch.    8  WHAT    IS    PUBLIC    POLICY.  §    279 


ARTICTLE  IT. 

Contracts    for    Office    and   for    Influencing    Official 

Conduct. 

Section  279.  Sale  of  Offices. 

280.  Influencing  Appointment  to  Office. 

281.  Compensation  by  Private  Person. 

282.  Controlling  the  Regular  Administration  of  Justice. 

283.  Assignment  of  Unearned  Compensation. 

284.  Contracts  to  Procure  Legislation — Lobbying  Contracts. 

285.  Compensation  for  Professional  Services. 

286.  Use  of  Improper  Influence. 

287.  Contract  for  Securing  a  Pardon. 

§  279.  Sale  of  offices. —  All  bargains  made  or  given  for  the 
pnrchase  or  sale  of  any  office  whatever,  is  void  as  against  public 
policy.  Such  agreements  are  void  at  common  law,  as  well  as 
by  statute.  And  contracts  to  procure  appointment  to  office^  are 
void  or  to  resign  office  in  another's  favor.^  Public  olffices  are 
public  trusts,  and  should  be  conferred  solely  upon  consideration 
of  ability,  integTity,  fidelity  and  fitness  for  the  position.  Agree- 
ments for  compensation  to  procure  these  tend  directly  and  neces- 
sarily to  lower  the  character  of  the  appointments  to  the  great 
detriment  of  the  public.  Therefore,  all  such  agreements  of 
whatever  nature  have  always  been  held  void  as  contrary  to 
public  policy.^ 

The  services  performed  by  an  officer  are  paid  for  by  salaries 
and  fees,  presumed  to  be  adjusted  at  the  point  of  adequate  re- 
muneration only.  Any  premium  paid  to  obtain  office  interferes 
with  the  adjustment  and  tempts  to  speculation,  overcharges  and 

1.  Meacham  v.  Dow,  32  Vt.  721;  3.  Meguire  v.  Corwine,  101  U.  S. 
Gracone  v.  Wroughton,  11  Exch.  108;  Tool  Co.  v.  Norris,  2  Wall.  (U. 
146;  Bobertson  v.  Robinson,  65  Ala.  S.)  45;  Gray  v.  Hook,  4  N.  Y.  449; 
610,  39  Am.  Rep.  17;  Stout  v.  En-  Gaston  v.  Drake,  14  Nev.  175,  33 
nis,  28  Kans.  706;  Engle  v.  Chip-  Am.  Rep.  548;  Filson  v.  Himes,  5 
man,  51  Mich.  524,  16  N.  886;  Card  Pa.  St.  452,  47  Am.  Dec.  422; 
V.  Hope,  2  Barn.  &  Cr.  661.  Liness  v.  Hesing,  14  111.  113;  Basket 

2.  Eddy  v.  Capron,  4  R.  I.  394,  v.  Moss,  115  N.  Car.  448,  20  S.  E. 
67  Am.  Dec.  541.  733,  44  Am.  St.  Rep.  463. 

295 


§§    279,  280  CONTEACTS    AGAINST    PUBLIC    POLICY.  Ch.    8 

frauds  in  the  effort  to  restore  the  balance  thus  disturbed/  And 
an  agreement  whereby  an  officer  agrees  to  accept  a  different 
compensation  than  that  provided  by  statute  for  his  ojfficial  acts, 
or  whereby  he  agrees  not  to  avail  himself  of  the  statutory  method 
of  enforcing  collection  of  fees,  is  contrary  to  public  policy  and 
void.^ 

§  280.  Influencing  appointment  to  ofifice. —  A  contract  is  con- 
trary to  public  policy  and  void  whereby  one  by  his  influence 
appoints  another  to  office,  the  latter  agreeing  as  compensation  to 
share  the  fees  with  the  former.^  So  an  agreement  by  an  appli- 
cant for  the  appointment  of  deputy  sheriff,  to  pay  the  sheriff  a 
portion  of  the  fees  received  by  him  as  an  oflScer,  is  void.^ 

Where,  therefore,  a  deputy  sheriff,  upon  his  appointment, 
gave  to  the  sheriff  a  l)ond  with  sureties,  conditioned  for  the  pay- 
ment by  him  to  the  sheriff  of  one-third  of  all  the  fees  received 
by  him,  both  in  civil  and  criminal  cases,  the  bond  is  void  and  no 
action  can  be  maintained  on  it  to  recover  the  proportion  specified 
of  fees  received  by  the  deputy  as  peace  officer.^ 

I^ot  only  an  agreement  by  one  to  pay  to  another,  a  public 
officer,  an  amount  equal  to  the  emoluments  of  the  unexpired 
term  of  his  office,  in  consideration  of  his  resignation  and  his 
influence  to  secure  the  appointment  of  the  former  to  the  office, 
is  void,  and  likewise  an  agreement  to  compensate  any  one  for, 
or  to  pay  the  expenses  of  anyone  in,  attempting  to  secure  the 
appointment;^  and  a  mortgage  to  secure  such  an  agreement  is 
void/° 

4.  Eddy  v.  Capron,  4  R.  I.  394.  7.  Deyoe  v.  Woodworth,  144  N. 
67  Am.  Dec.  541.  Y.    448,    29    N.   E.    375;    White    v. 

5.  Peters  v.  Davenport,  104  Iowa,  Cook,  51  W.  Va.  201,  41  S.  E.  410, 
625,  74  N.  W.  6.  57  L.  R.  A.  417,  90  Am.  St.  Rep. 

6.  Meguire  v.  Corwine,  101  U.  S.  775. 

108.    See,  also,  Marshall  v.  Railroad  8.  Deyoe  v.   Woodworth,   144   N. 

Co.,  16  How.  (U.  S.)  314;  Tool  Co.  Y.  448,  29  N.  E.  375. 

V.    Norris,    2    Wall.     (U.    S.)     45;  9.  Basket  v.  Moss,   115  N.  Car. 

Trist  V.  Child,  21  Wall.  (U.  S.)  44;  448,  20  S.  E.  733,  44  Am.  St.  Rep. 

Cappell   V.   Hall,   7    Wall.    (U.   S.)  463. 

542;   Deyoe  v.  Woodworth,   144  N.  10.  Basket  v.  Moss,  115  N.  Car. 

Y.  448;  29  N.  E.     375. 

296 


Ch.  8  WHAT  js  PUBLIC  POLICY.  §§  280,  281 

Closely  allied  to  this  class  of  cases  are  those  engaging  an 
editor  to  use  his  paper  to  advance  the  interest  of  a  candidate. 
Thus,  a  contract  by  which  an  editor  or  proprietor  of  a  news- 
paper agrees  to  use  the  influence  of  his  paper  to  secure  a  can- 
didate's nomination  to  a  political  office  is  void  as  against  public 
policy.  ^^ 

The  invalidity  of  such  contracts  designed  to  control  the  free- 
dom of  election,  results  from  the  principles  of  the  common  law, 
and  so  those  relating  to  caucuses  cannot  be  made  an  exception  on 
the  ground  that  such  meetings  are  not  recognized  by  the  statute. 
To  secure  a  free  and  exact  expression  of  the  sovereign  will,  there 
must  be  a  proper  selection  of  candidates,  as  well  as  an  honest 
election.  If  the  choice  of  delegates  and  the  action  of  the  nomin- 
ating convention  are  improperly  determined,  the  election  ballots 
will  fail  to  express  the  real  judgment  of  the  voters. 

§  281.  Compensation  by  private  person. —  An  agreement  by 
a  private  person  to  pay  a  public  officer  for  doing  his  duty  is 
void  as  against  public  policy,  it  is  otherwise  as  to  matters  not  in 
the  scope  of  the  officer's  public  duties.^  But  the  agreement  to 
pay  for  such  services  must  be  special  in  order  to  bind.^  And  an 
agreement  by  a  constable  with  an  execution  creditor  to  charge 
less  than  his  legal  fees  for  levying  an  execution  and  conducting 
a  sale  thereunder,  is  not  contrary  to  public  policy.^  But  a  con- 
tract for  the  allowance  and  payment  of  a  greater  compensation 
to  a  public  officer  than  that  fixed  by  law  for  his  services  is  void.* 

448,  20  S.  E.  733,  C4  Am.  St.  Rep.  2.  Warner    v.    Grace,    14    Minn. 

463.  487;  Trundler  v.  Riley,  17  B.  Mon. 

11.  Livingston   v.    Page,    74   Vt.  (Ky.)    396;    England   v.   Davidson, 

356,  52  A.  965,  59  L.  R.  A.  336,  93  11  Adol.  &  E.  856,  39  Eng.  Com.  L. 

Am.  St.  Rep.  901  and  note;  Liness  254;    McCandless  v.   Steel   Co.,   152 

V.  Hessing,  44  111.  113,  92  Am.  Dee.  Pa.  St.   139,  25   A.  579. 

153.  3.  Bloom    v.    Hazzard,    104    Cal. 

1.  McCandless  v.   Steel  Co.,   152  310,  37  P.  1037. 

Pa.  St.  139,  25  A.  579.  4.  Fawcett  v.  Woodbury  County, 

55  Iowa,  154,  7  N.  483;  Fawcett  v. 


297 


§    282*  CONTKACTS    AGAINST    PUBLIC    POLICY.  Cll.    8 

§  282.    Controlling  the  regular  administration  of  justice. — 

All  agreements  for  pecuniary  consideration  to  control  the  regu- 
lar administration  of  justice  are  void  as  against  public  policy, 
regardless  of  the  good  faith  of  the  parties,  and  without  reference 
to  the  question  as  to  whether  improper  means  are  contemplated 
or  used  in  their  execution.^  And,  hence,  a  justice  of  the  peace 
before  whom  an  ajSidavit  is  filed  charging  a  person  with  a  crime, 
although  his  powers  are  merely  those  of  an  examining  court, 
cannot  enter  into  a  valid  contract  with  the  prosecuting  witness 
to  arrest  the  accused  for  a  pecuniary  consideration,  when  the 
recompense  is  contingent  upon  the  amount  of  property  that  may 
be  recovered.^  All  agreements  relating  to  proceedings  in  the 
courts,  which  may  involve  anything  inconsistent  with  the  full 
and  impartial  course  of  justice  therein,  are  void,  though  not 
open  to  the  charge  of  actual  corruption.^ 

So,  where  a  candidate  for  judge,  in  order  to  secure  his  elec- 
tion, pledges  himself,  if  elected,  to  perform  the  duties  of  sucli 
office  for  a  sum  less  than  one-half  the  fees  allowed  by  law,  and 
voters  are  thereby  induced  to  vote  for  such  candidate,  and  he 
thus  receives  a  majority  of  the  votes  cast  for  such  office  at  such 
election,  his  election,  secured  by  these  means,  is  invalid  as 
against  public  policy.* 

Eberly,  58  Iowa,  544,   12   N.   580;  Stamper    v.     Temple,     6      Humph. 

Moore  v.  Mahaska  Coimty,  61  Iowa,  (Tenn.)  113,  44  Am.  Dec.  296. 

177,  16  N.  79;  Farley  v.  Piatt,  105  1.  Brown  v.  Bank,  137  Ind.  655, 

Mich.  635,  63  N.  W.  521;  Griffin  v.  37  N.  E.  158,  24  L.  R.  A.  206;  Tool 

Clay  County,  63  Iowa,  413,   19  N.  Co.  v.  Norris,  2  Wall.    (U.  S.)    45, 

329;   Adams  County  v.  Hunter,  78  56;   State  v.  Johnson,  52  Ind.   197; 

Iowa,  328,  43  N.  W.  208,  6  L.  R.  A.  Oscanyan  v.  Arms  Co.,   103   U.   S. 

615;    Kick  V.   Merry,   23   Mo.    72;  261;      Clipfinger    v.    Hepbaugh,    5 

Wilcoxson    V.    Andrews,    66    Mich.  Watts  &  S.   (Pa.)  315,  40  Am.  Dec. 

553,    33    N.    W.    533;    Neustadt   v.  519  and  note. 

Hall,  58  111.  172;  Gilmore  v.  Lewis,  2.  Brown  v.  Bank,  137  Ind.  655, 

12  Ohio,  281;   Brown  v.  Bank,   137  37  N.  E.  158,  24  L.  R.  A.  206. 

Ind.  655,  37  N.  E.  158,  24  L.  R.  A.  3.  Elkhart   County   v.   Crary,   98 

206 ;  Mitchell  V.  Vance,  5  T.  B.  Mon.  Ind.    238,    240,    242,    49    Am.    Rep. 

(Ky.)  528,  17  Am.  Dec.  96;  Pool  v.  746. 

Boston,     5     Gush.      (Mass.)      219;  4.  State  v.  Collier,  72  Mo.  13,  37 

Am.  Rep.  417  and  note. 

298 


Ch.    8  WHAT    IS    PUBLIC    POLICY.  §    283 

§  283.    Assignment  of  unearned  compensation  by  officer. — 

It  is  contrary  to  public  policy  for  a  public  officer  to  assign  or 
give  a  lien  upon  his  unearned  compensation  which  is  given  by 
law,  whether  such  compensation  be  salary  or  fees.  Any  such 
assignment  or  lien  is  void.^  And  this  is  the  law  in  England 
without  exception.^ 

There  is  no  distinction  in  principle  between  the  assignment 
of  unearned  fees  and  the  assignment  of  unearned  salary.  A 
salary  is  a  fixed  sum  for  a  given  time,  and  there  can  be  no 
doubt  as  to  the  amount  tcT  which  the  assignee  would  be  entitled. 
In  case  of  fees  to  be  paid  by  a  county  or  State,  the  officials 
would  be  required  to  go  into  a  settlement  of  the  question  of 
amount,  with  many  different  persons  in  some  instances,  which 
would  confuse  and  embarrass  the  public  business.  So,  if  there 
can  be  any  difference,  the  reason  is  stronger  for  holding  such 
assignment  of  fees  void  than  for  holding  a  like  assignment  of  a 
salary  to  be  invalid.^ 

There  are  cases  which  are  sometimes  referred  to  as  announc- 
ing a  different  rule.*  But  in  these  cases  the  point  of  public 
policy  was  not  considered  by  the  court  in  any  of  them;  the 
question  involved  in  them  was  regarded  as  relating  to  the  suffi- 
ciency of  the  interest  of  the  assignor  in  the  future  unearned 

1.  National  Bank  v.  Fink,  86  681 ;  Baurick  v.  Read,  1  H.  Bl.  627; 
Tex.  303,  24  S.  W.  256,  40  Am.  Arbuckle  v.  Cowtan,  3  Bos.  &  Pul. 
St.  Rep.  833 ;  Bliss  v.  Lawrence,  58  328 ;  Wells  v.  Foster,  8  Mees.  & 
N.  Y.  442,  17  Am.  Rep.  273;  Bangs  Wels.  149;  Hill  v.  Paul,  8  CI.  & 
V.  Dunn,  66  Cal.  74,  4  P.  963;  Fin.  307;  Palmer  v.  Bates,  2  Brod. 
Schloss  V.  Hewlett,  81  Ala.  266,  1  &  Bing.  673;  Liverpool  v.  Wright, 
So.  263;  Bowen  Nat.  Bank  v.  Wil-  28  L.  J.,  N.  S.  Ch.  871;  Davis  v. 
son,  122  N.  Y.  478,  25  N.  E.  855,  Marlborough,  1  Swanst.  79;  Stone 
19  Am.  St.  Rep.  507;  Field  v.  Chip-  v.  Lidderdale,  2  Anst.  533;  Lidder- 
ley,  79  Ky.  260,  42  Am.  Rep.  215  dale  v.  Montrose,  4  Term  R.  248. 
and  note;  Schwenk  v.  Wyckoff,  46  3.  Bliss  v.  Lawrence,  58  N.  Y. 
N.  J.  Eq.  560,  20  A.  259,  S  L.  R.  A.  442,   17  Am.  Rep.  273. 

221;    Webb   v.    McOauley,   4    Bush.  4.  Brackett    v.     Blake,     7     Met. 

(Ky.)     10;     Bell    v.    McVicker,    8  (Mass.)   335,  41  Am.  Dec.  442  and 

Mo.  App.  202;  State  v.  Williamson,  note;    Marshall    v.    Quinn,    1    Gray 

118  Mo.  146,  23  S.  W.  1054,  40  Am.  (Mass.),    105,    61    Am.    Dec.    414; 

St.  Rep.  358.  INIacomber  v.  Dane,  2  Allen  (Mass.), 

2.  Flarity  v.  Odium,   3  Term  R.  541. 

299 


§  283       CONTRACTS  AGAINST  PUBLIC  POLICY.        Ch.  8 

salary  to  distinguish  the  cause  from  those  of  attempted  as- 
signment of  mere  expectations,  such  as  those  of  an  expectant 
heir.  In  the  case  of  Marshall  v.  Quinn,^  the  matter  in  dispute 
was  neither  fees  nor  salary  of  a  public  officer,  but  was  for  the 
price  of  work  done  for  a  city.  In  Brackett  v.  Blake,^  the  ques- 
tion of  public  policy  was  not  considered.  In  Macomber  v. 
Dane,'  an  officer  had  assigned  his  salary,  but  the  only  question 
considered  was  as  to  whether  or  not  it  was  assignable  on  account 
of  its  being  a  mere  possibility.  Public  policy  was  not  discussed 
nor  mentioned  in  the  case. 

A  few  cases  announce  a  different  rule  from  the  weight  of  au- 
thority. In  People  v,  Dayton,^  it  was  held  that  the  assignment 
of  unearned  fees  does  not  fall  within  the  rule  sustained  by  the 
courts  as  to  salaries.  But  this  doctrine  was  overruled  in  a  later 
case.^  In  State  v.  Hastings,^*'  it  seems  to  announce  a  contrary 
rule,  but  as  in  that  case  the  order  for  the  unearned  salary,  with 
authority  to  collect  the  same,  had  been  transferred  to  an  in- 
nocent purchaser,  the  case  turned  principally  on  estoppel.  The 
question  as  to  whether  or  not  the  assignment  of  the  unearned 
salary  was  against  public  policy,  was  not  raised  or  discussed. 

The  reason  of  the  rule  is  that  public  service  may  not  be  so 
good  and  efficient  when  the  unearned  salary  has  been  assigned  as 
when  it  has  not  been,  and  that  the  public  service  is  protected  by 
protecting  those  engaged  in  the  performance  of  public  duties; 
and  this,  not  upon  the  ground  of  their  private  and  undivided 
interests,  but  that  of  the  necessity  of  securing  the  efficiency  of 
the  public  service  by  seeing  to  it  that  the  funds  provided  for  its 
maintenance  should  be  received  by  those  who  are  to  perform  the 
work  at  such  periods  as  the  law  has  appointed  for  their  pay- 
ment.^^  Or,  as  the  English  case  holds  that  emoluments  of  this 
sort  are  granted  for  the  dignity  of  the  State  for  the  decent  sup- 

5.  1  Gray  (Mass.),  105,  61  Am.  122  N.  Y.  478,  25  N.  E.  855,  9  L. 
Dec.  414.  E.  A.  706,  19  Am.  St.  Rep.  507. 

6.  7  Met.    (Mass.)    335.  10.  15  Wis.  75. 

7.  2  Allen    (Mass.),  541.  11.  Bliss  v.  Lawrence,  58  N.  Y. 

8.  50  How.  Pr.   (N.  Y.)   143.  442,  7  Am.  Rep.  273;  Peters  v.  Dav- 

9.  Bowery  Nat.  Bank  v.  Wilson,  enport,  104  Iowa,  625,  74  N.  W.  6. 

300 


Ch.    8  WHAT    IS    PUBLIC    POLICY.  §§    283,  2S4: 

port  of  those  persons  who  are  engaged  in  the  service  of  it.  It 
would,  therefore,  be  highly  impolitic  to  permit  them  to  be  as- 
signed ;  for  persons  who  are  liable  to  be  called  out  in  the  service 
of  their  country  ought  not  to  be  taken  from  a  state  of  poverty.^ 
Dignity  of  office,  in  the  sense  that  the  term  is  used  in  the  Eng- 
lish eases,  does  not  exist  in  this  country ;  but  there  should  be  a 
dignity  attending  every  office,  in  the  sense  that  a  proper  and  in- 
dependent discharge  of  its  duties  inspires  respect  for  the  officer 
and  for  the  office. 

It  is  easy  to  see  how  great  abuses  would  follow  if  such  trans- 
fers were  permitted.  Not  only  would  there  exist  a  constant 
temptation  to  anticipate  future  earnings  under  the  stress  of 
present  financial  pressure,  at  usurious  rates  of  discount,  but 
when  completed,  one  of  the  strongest  incentives  to  industrious 
exertion  —  the  expectation  of  pecuniary  reward  in  the  near 
future  —  would  be  gone.^^ 

§  284.  Contracts  to  procure  legislation  —  Lobbying  con- 
tracts.—  Contracts,  which  have  for  their  subject-matter  any 
interference  with  the  creation  of  taws  or  their  due  enforcement, 
are  against  public  policy  and,  therefore,  void.^  It  is  enough 
that  such  is  the  tendency  of  the  contract,  that  it  is  contrary  to 
sound  morality  and  public  policy,  leading  necessarily,  in  the 
hands  of  designing  and  corrupt  men,  to  improper  tampering 
with  law  makers,  and  the  use  of  an  extraneous  secret  influence, 
over  an  important  branch  of  the  government.  It  may  not 
corrupt  at  all,  but  if  it  corrupts  or  attempts  to  corrupt  some,  or 
if  it  deceives  or  tends  to  deceive  or  mislead  some,  that  is  suffi- 
cient to  stamp  its  character  with  the  seal  of  reprobation  before 

12.  Flarity  v.  Odium,  2  T.  Kep.  Wells  v  Foster,  8  Mees.  &  W.  149; 
681.  Loser  v.   Board,   92   Mich.   633,   52 

13.  Schloss  V.  Hewlett,   81   Ala.       N.  W.   956. 

290,  1  So.  263;  In  re  Worthington,  1.  Ormerod  v.  Dearman.  100  Pa. 

141  N.  Y.  9,  35  N.  E.  929.     By  act  St.  561,  45  Am.  Rep.  391;  Spalding 

of  Congress   of   Feb.   28,   1883,  any  v.   Ewing,    149   Pa.   St.   375,   24   A. 

pledge,  mortgage,  sale,  assignment,  219,   15   L.  R.  A.   7^7,   34  Am.   St. 

or  transfer  of  any  right,  claim  or  Rep.  60S ;  Frost  v.  Belmont,  6  Allen 

interest  in  a  pension  is  void.     See,  (Mass.),    152;    Weed    v.    Black,    2 

301 


§  284 


CONTRACTS    AGAINST    PUBLIC    POLICY. 


Ch.   8 


the  courts.^  If  a  party  is  employed  to  render  lobby  service  in 
procuring  the  legislation  desired  by  another  party,  then  he  can- 
not recover  for  his  services.^  And  a  promise  to  pay  a  contingent 
fee  on  the  passage  of  a  bill  is  void  ;*  but  if  the  contract  is  not  a 
lobbying  contract  it  will  be  upheld.^ 

In  general,  a  contract  to  procure  or  endeavor  to  procure  the 
passage  of  an  act  of  the  legislature  by  any  illegal  method,  or 
by  using  personal  influence,  with  the  members,  is  void,  as 
against  public  policy.^  The  weight  of  authority  is,  that  a  con- 
tract for  a  consideration  to  use  personal  influence  or  other 
secret  methods,  not  necessarily  wrong  in  themselves,  is  against 
public  policy  and,  therefore,  void,'  And  in  all  these  cases  where 
services  are  rendered  for  a  contingent  fee  the  contract  is  void 


MacArthur,  D.  C.  2Q8;  McBratney 
V.  Chandler,  22  Kans.  692,  31  Am. 
Rep.  213;  Cook  v.  Shipman,  24  111. 
614;  Harris  v.  Roof,  10  Barb.  (N. 
Y.)  489;  Rose  v.  Truax,  21  Barb. 
(N.  Y.)    361. 

2.  Trist  V.  Child,  21  Wall.  (U. 
S. )  441;  Clipfinger  v.  Hepbaugh,  5 
Watts  &  S.  (Pa.)  315,  40  Am.  Dec. 
519  and  note;  Bryan  v.  Reynolds, 
5  Miss.  200,  68  Am.  Dec.  55;  Wood 
V.  McCann,  6  Dana  (Ky.),  366; 
Hatzfield  v.  Golden,  7  Watts  (Pa.), 
152,  32  Am.  Dec.  750;  Bowman  v. 
Coffroth,  59  Pa.  St.  19;  Marshall 
V.  Railroad  Co.,  16  How.  (U.  S.) 
314;  Powers  v.  Skinner,  34  Vt. 
274,  80  Am.  Dec.  677 ;  Coquillard  v. 
Bearss,  21  Ind.  479,  83  Am.  Dec. 
362;  Howell  v.  Fountain,  3  Ga.  176; 
Mills  V.  Mills,  40  N.  Y.  543,  100  Am. 
Dec.  535. 

3.  Chippewa,  etc.  R.  R.  Co.  v. 
Railroad  Co.,  75  Wis.  248,  44  X.  W. 
17,  6  L.  R.  A.  601;  Frost  v.  Bel- 
mont, 6  Allen  (Mass.),  152;  Harris 
V.  Roof,  10  Barb.  (N.  Y.)  489; 
Sedgwick  v.  Stanton,  14  N.  Y.  289. 

4.1  Wood    V.    McCann,    6    Dana 


(Ky.),  366;  Spalding  v.  Ewing,  149 
Pa.  St.  375,  24  A.  219,  15  L.  R.  A. 
727,  34  Am.  St.  Rep.  608;  Compare 
Bryan  v.  Reynolds,  5  Wis.  200,  68 
Am.  Dec.  55 ;  Workman  v.  Campbell, 
46  Mo.  305;  Denison  v.  Crawford, 
48  Iowa,  211;  Burbridge  v.  Fockler, 
2  McAr.  D.  C.  407.  See,  also.  Tool 
Co.  V.  Norris,  2  Wall.  (U.  S.)  48, 
56;  Oscanyan  v.  Arms  Co.,  103  U. 
S.  261;  Woodstock  Iron  Co.  v.  Ex- 
tension Co.,  129  U.  S.  643,  9  S.  Ct. 
402. 

5.  Houlton  V.  Mchol,  93  Wis. 
393,  67  N.  W.  715,  33  L.  R.  A.  166, 
57  Am.  St.  Rep.  928. 

6.  Burney  v.  Ludling,  47  La.  Ann. 
73,  17  So.  877 ;  Frost  v.  Belmont,  6 
Allen  (Mass.),  152;  Houlton  v. 
Dunn,  60  Minn.  26,  61  N.  W.  898, 
30  L.  R.  A.  737  and  note,  51  Am. 
St.  Rep.  493. 

7.  Trist  V.  Child,  21  Wall.  (U. 
S.)  441;  Spalding  v.  Ewing,  149 
Pa.  St.  375,  24  A.  219,  15  L.  R.  A. 
727,  34  Am.  St.  Rep.  608 ;  McBrat- 
ney V.  Chandler,  22  Kan.  692,  31 
Am.  Rep.  213;  Sweeney  v.  McLeod, 
15  Oreg.  339,  15  P.  275;  Powers  v. 


302 


Cb.    8  WHAT   IS    PUBLIC    POLICY.  §§    284,  285 

irrespective  of  the  means  nsed.^  But  all  professional  contracts 
for  preparing  and  arguing  a  case  before  a  legislative  body  or  its 
committee  are  valid. ^  And  contracts  which  contemplate,  not 
the  influencing  of  the  legislature,  but  onlj  meeting  the  con- 
ditions of  legislative  action,  are  generally  valid.  Thus,  a  con- 
tract to  use  personal  influence  to  obtain  the  consent  of  property 
holders  necessary  to  enable  a  city  council  to  pass  an  ordinance 
authorizing  the  construction  of  an  elevated  railway  is  valid.^° 
So,  also,  where  a  city  agrees  to  pass  a  certain  ordinance  on  the 
consent  of  a  certain  number  of  taxpayers,  a  contract  by  which 
the  mayor  of  the  city  was  employed  to  procure  the  number  is 
valid."  So  where  one  with  large  experience  in  regard  to  public 
lands,  is  engaged  to  conduct  the  business  of  procuring  certain 
lands,  the  contract  is  valid. ^  And  so  the  distribution  of  cir- 
culars for  the  purpose  of  influencing  legislation  is  a  valid  con- 
sideration for  a  contract.  ^^ 

§  285.  Compensation  for  professional  services. —  An  at- 
torney may  claim  compensation  for  purely  professional  ser- 
vices performed  in  connection  witb  legislation  in  which  his 
client  has  an  interest. ^^  Within  this  category  are  included  draft- 
ing the  petition  to  set  forth  the  claim,  attending  to  the  taking  of 

Skinner,  34  Vt.  274,  80  Am.  Dec.  Russell  v.  Burton,  66  Barb.  (N.  Y.) 
677.  539. 

8.  Marshall  v.   Railroad  Co.,   16  10.  Union  El.  R.  R.  Co.  v.  Nix- 


How.  (U.  S.)  314;  Burmudez  As 
phalt  Co.  V.  Critchfield,  62  111.  App 
224;  Chippewa  Valley  R.  R.  Co.  v 
Railroad  Co.,  75  Wis.  224,  44  N, 
W.    17,   6   L.   R.   A.   601;    Wood   v 


on,  199  111.  235,  65  N.  E.  314. 

11.  Bridgeford  v.  Tuscumbia,  16 
Fed.  Rep.  910. 

12.  Houlton   V.   Nichol,  93   Wis. 
393,  67  N.  W.  715,  33  L.  R.  A.  166, 


McCann,   6   Dana    (Kj.) ,   366;    Co-  57  Am.  St.  Rep.  928. 

quillard  v.  Bearss,  22  Ind.  479.  13.  Kansas,    etc.    R.    R.    Co.    v. 

9.  Chesebrough   v.    Conover,    140  ]\IcCoy,  8  Kan.  359. 

N.  Y.  382,  35  N.  E.  633;  Strathman  14.  Spalding  v.   Ewing,   149   Pa. 

V.  Gorla,  14  Mo.  App.  1 ;  W^ildey  v.  St.  375,  24  A.  219,  15  L.  R.  A.  727, 

Collier,  7  Md.  273,  61  Am.  Dec.  346;  34  Am.  St.  Rep.  608;  Bryan  v.  Rey- 

Trist     V.     Child,     21      Wall.      (U.  nolds,    15    Wis.    200,    68    Am.    Dec. 

S.)    441;    Yates    v.    Robertson,    80  57. 
Va.  475;   Miles  v.  Thorne,  38  Cal. 
335,   90   Am.   Dec.    384    and   note; 

303 


§§  285,  286     CONTRACTS  AGAINST  PUBLIC  POLICY.     Ch.  8 

testimony,  collecting  facts,  preparing  arguments,  and  submit- 
ting them,  orally  or  in  writing,  to  a  committee  or  other  proper 
authority,  and  other  services  of  like  character.  All  these  things 
are  intended  to  reach  only  the  reason  of  those  sought  to  be  in- 
fluenced. They  rest  on  the  same  principle  of  ethics  as  profes- 
sional services  rendered  in  a  court  of  justice,  and  are  no  more 
exceptional.  But  such  services  are  separated  by  a  broad  line  of 
demarcation  from  personal  solicitations,  and  other  means  and 
appliances,  tending  to  corrupt  the  lawmakers.^" 

It  is  the  right  of  every  party  interested  in  any  proposed  legis- 
lation to  employ,  and  agree  to  pay,  an  agent  to  draft  a  bill,  and 
fairly  and  openly  to  explain  it  to  a  legislative  committee  or  any 
member  of  the  legislature,  and  ask  to  have  it  introduced;  and 
a  contract  with  an  agent  which  does  not  call  for  more,  and 
services  under  it  which  does  not  go  further,  are  not  against 
public  policy. ■^^ 

§  286.  Use  of  improper  influence. —  If  a  contract  is  legal,  it 
will  not  be  made  illegal  by  the  misconduct  on  the  part  of  the 
plaintiff  in  carrying  it  out.^  If  the  contract  is  legal,  the  fact  that 
the  plaintiff  did  things  against  public  policy,  if  it  be  a  fact, 
can  be  considered  only  as  bearing  by  way  of  illustration  upon  the 
question  whether  the  tendency  of  the  contract  necessarily  was  to 
induce  the  doing  of  such  things.^  If  the  only  service  on  the  part 
of  the  plaintiff  promised  by  him,  or  contemplated  by  either 
party  at  the  time,  were  legitimate  services,  the  contract  is  valid.' 
But  a  contract  contemplating  the  use  of  secret  influence  with 

15.  Trist  V.  Child,  21  Wall.    (U.  2.  Powers  v.  Skinner,  34  Vt.  274, 
S.)     441.      See,    also.    Tool    Co.    v.        284,  80  Am.  Dec.  677. 

Norris,    2    Wall.     (U.    S.)    48,    56;  3.  Fuller     v.     Davis,     18     Pick. 

Oscanyan   v.   Arms   Co.,    103   U.    S.  (Mass.)    472,  480;    Trist  v.   Child, 

261;  Woodstock  Iron  Co.  v.  Exten-  21   Wall.    (U.   S.)    441,  450;    Mar- 

sion  Co.,   129   U.  S.  643,   9   S.   Ct.  shall  v.  R.  R.  Co.,  IB  How.  (U.  S.) 

402.  314,  335;  Lyon  v.  Mitchell,  36  N. 

16.  Chesebrough  v.  Conover,  140  Y.    235,    241,    93    Am.    Dec.    502; 
N.  Y.  382,  35  N.  E.  633.  Barry  v.   Capen,   151   Mass.   99,  23 

1.  Howden  v.  Simpson,  10  Ad.  &        N.  E.  735,  6  L.  R.  A.  808. 
El.    793,    818,    819,   2   Per.   &   Dav. 
714,  740,  9  CI.  &  Fin.  61,  68. 

304 


Ch.    8  WHAT   IS   PUBLIC    POLICY.  §§    286,  287 

public  ojfBcers  is  void  as  against  public  policy.*  So,  a  contract 
to  bribe  or  corruptly  influence  officers  of  a  foreign  government 
will  not  be  enforced  in  the  courts  of  the  United  States,  not 
from  any  consideration  of  that  government  or  any  regard  for 
its  policy,  but  from  the  inherent  viciousness  of  the  transaction, 
its  repugnancy  to  our  morality  and  the  pernicious  effect  which 
its  enforcement  by  our  courts  would  have  upon  our  people.^ 

Contracts  to  influence  legislative  action  are  void  as  against 
public  policy.® 

§  287.  Contract  for  securing  a  pardon. —  It  is  generally  held 
that  a  contract  for  services  in  securing  a  pardon  of  one  con- 
victed of  crime  is  not  illegal,  if  the  employment  of  improper 
methods  is  not  contemplated.^  The  presumption  of  law  is  in 
favor  of  the  legality  of  contracts,  and,  the  object  sought  to  be 
acomplished  being  lawful,  unless  it  affirmatively  and  distinctly 
appears  that  it  was  contemplated  that  means  were  to  be  resorted 
to  for  its  accomplishment  which  the  law  will  not  sanction,  the 
courts  cannot  declare  the  contract  void.  So,  there  can  be  noth- 
ing unlawful  or  opposed  to  public  policy  in  simply  employing 
a  party  to  secure  a  pardon  by  proper  means.^ 

4.  Hutchen  v.  Gibson,  1  Bush.  24  S.  E.  544,  32  L.  R.  A.  413,  57 
(Ky.)    270;    Murray   v.   Wakefield,        Am.  St.  Rep.  847. 

9  Mo.  App.  591;  Ormerod  v.  Dear-  1.  Moyer  v.  Canfieny,  41  Minn, 

man,  100  Pa.  St.  561,  45  Am.  Rep.  242,  42  N.  W.  1060.    See,  also,  Tim- 

391;   Wright  v.  Rindskoflf,  43  Wis.  othy   v.   Wright,   8    Gray    (Mass.), 

344;    Rhodes  v.   Neal,   64   Ga.   704,  522,  Rau  v.  Boyle,  5   Bush    (Ky.), 

37  Am.  Rep.  93;  Wildey  v.  Collier,  253. 

7  Md.  273,  61  Am.  Dee.  346.  2.  Chadwick  v.  Knox,  31   N.  H. 

5.  Watson  v.  Murray,  23  N.  J.  226,  64  Am.  Dee.  S29;  Formby  v. 
Eq.  257;  Hope  v.  Hope,  8  DeG.  M.  Pryor,  15  Ga.  258;  Brewsen  v. 
&  G.  731.  Engler,   49   N.   Y.   Super.  Ct.   172; 

6.  Bermudez  Asphalt  Paving  Co.  Compare  Hainey  v.  Lewis,  54  Iowa, 
V.  Critchfield,  62  111.  App;  221 ;  Bar-  301,  6  N.  495,  37  Am.  Rep.  202  and 
ber  Asphalt  Paving  Co.  v.  Botsford,  note;  Kribben  v.  Haycraft,  26  Mo. 
56  Kans.  532,  44  P.  3;  Harrington  396;  Hatzfield  v.  Gulden,  7  Watts 
V.  Crawford,  61  Mo.  App.  221;  (Pa.),  152,  32  Am.  Dec.  750. 
Honaker  v.  Board,  42  W.  Va.  170, 


305 


CHAPTER  IX. 

liimitirag   Liability   for   Negligence. 


AETICLE  I. 

Liability  as  to  Carkiage. 

Section  288.  Common  Carriers — Railroad  Companies. 

289.  Express     Companies. 

290.  Liability  Limited  Beyond  Its  Own  Line  of  Carriage. 

29 L  Limiting  Liability  as  to  Losses  Occurring  not  from  Its  Own 
Negligence. 

§  288.  Common  carriers. —  A  common  carrier  cannot  as  a 
general  rule  divest  itself  of  liability,  either  by  special  contract 
or  notice,  where  damages  or  loss  results  from  its  own  negligence, 
fraud,  or  misfeasance.^  A  common  carrier  cannot  lawfully 
stipulate  for  exemption  from  responsibility  when  such  exemp- 


1.  Jones  V.  Railroad  Co.,  125  Mo. 
666,  28  S.  W.  883,  26  L.  R.  A.  718, 
46  Am.  St.  Rep.  514;  Union.  Pac. 
R.  R.  Co.  V.  Rainey,  19  Colo.  225, 
34  P.  986;  Transportation  Co.  V. 
Cornforth,  3  Colo.  280,  25  Am.  Rep. 
757;  Sager  v.  Railroad  Co.,  31  Me. 
228,  50  Am.  Dec.  659;  Rallman  v. 
Express  Co.,  3  Kans.  211;  Pratt  v. 
Railroad  Co.,  102  Mass.  557;  Farn- 
ham  V.  Railroad  Co.,  55  Pa.  St.  58 ; 
Indianapolis  R.  R.  Co.  v.  Allen,  31 
Ind,  394;  Berry  v.  Cooper,  28  Ga. 
543;  Railroad  Co.  v.  Stevens,  95 
U.  S.  655 ;  Rose  v.  Railroad  Co.,  39 
Iowa,  246;  Annas  v.  Railroad  Co., 
67  Wis.  46,  30  N.  W.  282,  58  Am. 
Rep.  848;  Jacobus  v.  Railroad  Co., 


20  Minn.  125,  18  Am.  Rep.  360; 
Missouri  Pac.  Railroad  Co.  v.  Iney, 
71  Tex.  409,  9  S.  W.  346,  10  Am. 
St.  Rep.  758 ;  Willis  v.  Railroad  Co., 
65  Me.  489;  Flinn  v.  Railroad  Co., 
1  Houst.  (Del.)  469;  Railroad  Co. 
V.  Curran,  19  Obio  St.  1,  2  Am. 
Rep.  362;  Railroad  Co.  v.  Hopkins, 
41  Ala.  486,  94  Am.  Dec.  607;  Rail- 
road Co.  V.  Wynn,  88  Tenn.  330,  14 
S.  W.  311 ;  Moslin  v.  Railroad  Co., 
14  W.  Va.  180,  35  Am.  Rep.  748; 
Vaughn  v.  Railroad  Co.,  62  Mo. 
App.  461;  Maxwell  v.  Railroad  Co., 
48  La.  Ann.  383,  19  So.  287;  Springs 
V.  Railroad  Co.,  46  S.  Car.  104,  24 
S.  E.  166;  Railroad  Co.  v.  Sayers, 
26  Gratt.    (Va.)    328;   Orendorff  v. 


306 


oil.    9  MMITI.NCi     LIAUII^ITY     I'OK    NEGLIGENCE.  §    288 

tion  is  not  just  and  reasonable/  because  such  contract  is  against 
public  policy  and  is  therefore  void.^ 

A  railroad  company,  in  the  carriage  of  goods,  is  subject  to  the 
liability  of  a  common  carrier,  and  must  answer  for  all  losses  not 
occasioned  by  the  act  of  God  or  the  public  enemy,  and  cannot 
by  special  contract  limit  or  relieve  itself  from  this  liability.*  A 
common  carrier  may  make  special  contracts  of  carriage  with  cus- 
tomers, and  thus  relieve  itself  of  many  of  the  responsibilities 
imposed  by  law,  but  it  cannot  contract  against  the  consequences 
of  its  own  negligence.''  And  it  cannot  limit  its  liability  in  any 
respect  by  such  special  contract,  where  the  shipper  is  not  af- 
forded an  opportunity  to  contract  for  the  services  required  of  the 
carrier  by  law  without  restrictions.^  But  where  a  carrier,  receiv- 
ing merchandise  to  be  shipped  and  to  collect  on  delivery,  stipu- 
lates that  its  liability,  while  holding  it  for  collection  shall  be 
that  of  a  warehouseman,  such  an  agreement  is  valid  if  there  is 
nothing  to  show  that  it  is  unreasonable ;  and  the  carrier  will  not 
be  liable  for  the  destruction,  by  a  mob,  of  the  merchandise  so 
held,  without  negligence  on  its  part.""     An  express  stipulation 

Express  Co.,  3  Bush.   (Ky.)    194,  26  L.  R.  A.  527  and  note,  39  Am.  St. 

Am.  Dec.  207;   Taylor  v.  Railroad  Rep.  230  and  note;  St.  Joseph,  etc. 

Co.,    39   Ark.    148;    Express   Co.  v.  R.  R.   Co.  v.  Palmer,  38  Neb.  463, 

Moon,    39    Miss.    822;    Fonseka    v.  56  N.  W.  957,  22  L.  R.  A.  335. 
Steamship   Co.,    153   Mass.   553,   27  4.  St.  Joseph,   etc.,  R.   R.  Co.  v. 

N.  E.  665,  12  L.  R.  A.  340  and  note,  Pahiier,  38  Neb.  463,  56  N.  W.  957 

25   Am.   St.   Rep.   660;    Hoadley  v.  22  L.  R.  A.  335. 
Transportation  Co.,  115  Mass.  304,  5.  Pacific  Express  Co.  v.  Wallace, 

15  Am.  Rep.  106.  60  Ark.  100,  29  S.  W.  32;  Grace  v. 

2.  New  York  Cent.  R.  R.  Co.  v.  Adams,  100  Mass.  505,  1  Am.  Rep. 
Lockwood,  17  Wall.  (U.  S.)  357;  131;  Hoadley  v.  Transportation 
Railroad  Co.  v.  Stevens,  90  U.  S.  Co.,  115  Mass.  304,  15  Am.  Rep. 
655.  100. 

3.  Pennsylvania  Railroad  Co.  v.  6.  Railroad  Co.  v.  Cravens,  57 
Henderson,  51  Pa.  St.  315;  Arm-  Ark.  112,  20  S.  W.  803,  18  L.  R.  A. 
strong  V.  Express  Co..  159  Pa.  St.  527  and  note,  38  Am.  St.  Rep.  230 
640,  28  A.  448;  Louisville  R.  R.  Co.  and  note. 

V.  Dies,  91  Tenn.  177,  18  S.  W.  206,  7.  Pacific  Express  Co.  v.  Wallace, 

30  Am.   St.   Rep.   871;   Pacific  Ex-  60   Ark.    100,    29    S.    W.    32.     See, 

press  Co.  v.  Wallace,  60  Ark.  100,  also.    Constable   v.    Steamship    Co.,' 

29  S.  W.  32;  Railroad  Co.  v.  Cra-  154  U.  S.  51,  14  S.  Ct.  1062. 
vens,  57  Ark.  112,  20  S.  W.  803,  18 

307 


§  288 


CONTEACTS    AGAINST    PUBLIC    POLICY. 


Ch.    D 


by  any  common  carrier  for  hire  in  a  contract  of  carriage  that 
he  shall  be  exempt  from  liability  caused  by  his  own  or  his  ser- 
vants' negligence  is  void  as  against  public  policy.^  But  in 
England,  'New  Jersey  and  New  York  a  common  carrier  may 
stipulate  against  his  own  negligence,  and  the  contract  will  be 
upheld.^ 

In  the  absence  of  Federal  legislation,  the  validity  of  a  stipu- 
lation of  a  common  carrier  who  does  an  interstate  business,  will 
be  determined  by  the  common  law/"  Contracts  are  often  made 
by  railroad  companies,  with  the  next  of  kin  against  liability  for 
negligence  to  the  employee,  where  the  railroad  company  is  re- 
leased from  all  damages  that  may  accrue  to  the  employee  by 
reason  of  the  railroad  negligence.  Generally  such  contracts 
are  void  as  against  public  policy. ^^  But  other  cases  hold  that 
such  contracts  are  not  against  public  policy,^  though  this  doc- 
trine is  against  the  weight  of  authority.  The  employee  may 
stipulate  that,  if  injured  through  the  fault  of  the  railroad  com- 
pany, he  will  then  elect  whether  to  accept  certain  benefits  by 


8.  Express  Co.  v.  Caldwell,  21 
Wall.  (U.  S.)  264;  Chicago,  etc. 
E.  R.  Co.  V.  Davis,  159  111.  53,  42 
N.  E.  382,  50  Am.  St.  Rep.  143; 
Atchinson,  etc.  R.  R.  Co.  v.  Lawler, 
40  Neb.  356,  58  N.  W.  968;  Black 
V.  Transportation  Co.,  55  Wis.  319, 
13  N.  244,  42  Am.  Rep.  713;  Liver- 
pool, etc.,  Steamship  Co.  v.  Ins.  Co., 
129  U.  S.  397,  9  S.  Ct.  480;  McFad- 
den  V.  Railroad  Co.,  92  Mo.  343,  4 
S.  W.  681,  1  Am.  St.  Rep.  721; 
Grogan  v.  Express  Co.,  114  Pa.  St. 
523,  7  A.  134,  60  Am.  Rep.  360; 
Burk  V.  Railroad  Co.,  150  Pa.  St. 
170,  24  A.  341,  30  Am.  St.  Rep.  805; 
Lindsley  v.  Railroad  Co.,  36  Minn. 
539,  33  N.  W.  7,  1  Am.  St.  Rep. 
692;  Hull  v.  Railroad  Co.,  41  Minn. 
510,  41  N.  W.  936,  5  L.  R.  A.  587, 
16  Am.  St.  Rep.  722;  Boehl  v.  Rail- 
road Co.,  44  Minn.  191,  46  N.  W. 
333;    Abrams   v.    Railroad    Co.,   87 


Wis.  485,  58  N.  W.  780,  4  Am.  St. 
Rep.  55. 

9.  Peck  V.  Railroad  Co.,  10  H. 
L.  Cas.  473;  McConeley  v.  Railroad 
Co.,  L.  R.  8  Q.  B.  57;  Kenney  v. 
Railroad  Co.,  125  N.  Y.  422,  26  N. 
E.  626;  Mynard  v.  Railroad  Co.,  71 
N.  Y.  180,  27  Am.  Rep.  28;  Nicho- 
las V.  Railroad  Co.,  89  N.  Y,  370; 
Kinney  v.  Railroad  Co.,  32  N.  J.  L. 
409,  90  Am.  Dec.   675. 

10.  Davis  V.  Railroad  Co.,  93 
Wis.  470,  67  N.  W.  16,  1132,  33  L. 
R.  A.  654,  51  Am.  St.  Rep.  935. 

11.  Tarbell  v.  Railroad  Co.,  73 
Vt.  347,  51  A.  6,  56  L.  R.  A.  656,  87 
Am.  St.  Rep.  734. 

12.  Griffiths  v.  Dudley,  9  Q.  B. 
D.  357 ;  Railroad  Co.  v.  Bishop,  50 
Ga.  465;  International,  etc.  Rail- 
road Co.  v.  Hinzie,  82  Tex.  623,  18 
S.  W.  672. 


308 


(   II.    \)         LIMITING   LIABILITY   FOR  NEGLIGENCE.  §§    288,  289 

means  of  a  relief  fund  created  by  the  company  alone  or  with, 
other  companies,  and  that  he  will  not  claim  double  compensa- 
tion.^^ 

Of  course  tlie  g;eneral  rule  is  that  a  common  carrier  cannot 
stipulate  against  its  own  carelessness  to  avoid  damages  to  its 
customers,  but  tliis  doctrine  does  not  hold  and  is  not  applicable 
to  special  contracts.  Thus,  a  railroad  company  is  not  liable 
under  a  special  contract,  whereby  the  company  was  released 
and  discharged  from  all  liability  for  loss  or  damages  to  circus 
property.  Where  a  railroad  company  makes  a  special  contract 
with  the  owners  of  a  circus  company  to  haul  their  special  cars, 
the  railroad  company  is  not  a  common  carrier  under  such  cir- 
cumstances and  its  special  contract  against  damages,  from  its 
0"\vn  negligence,  is  valid. ^*  In  such  a  case  the  railroad  com- 
pany is  not  required  as  a  common  carrier  to  take  a  circus  train 
of  this  kind  on  a  special  schedule,  and  therefore  the  contract 
is  not  compulsory,  and  the  circus  proprietors  must  stand  by 
their  contract  exempting  the  railroad  company  from  damages 
caused  by  the  company's  own  negligence ;  the  company  was  not 
a  common  carrier  as  to  the  circus  cars,  and  the  special  contract 
was  valid. ^^ 

§  289.  Express  companies. —  As  stated  in  the  preceding  sec- 
tion an  express  company  or  other  common  carrier  cannot,  by 
special  contract  relieve  itself  from  consequences  of  its  own  negli- 
gence.^ The  express  company  has  the  right  to  demand  from  the 
consignor  such  information  as  will  enable  it  to  decide  on  the 

13.  Pittsburg,  etc.   Eailroad  Co.  506,  14  C.  C.  A.  257,  24  U.  S.  App. 
V.   Moore,    152   Ind.   345,   53   N.   E.  589,  30  L.  R  A.  161  and  note. 
290,  44  L.   R.  A.   638;   Johnson  v.  15.  Wilson  v.  Railroad  Co.,   129 
Railroad   Co.,    163   Pa.   St.    127,   29  Fed.  Rep.  774. 

A.  854;   N.  Y.  Cent.  R.  R.  v.  Lock-  1.  Armstrong     v.     Express     Co., 

wood,  17  Wall.    (U.  S.)   357.  21  L.  159  Pa.  St.  640,  28  A.  148;  Express 

Ed.  627.  Co.  V.  Caldwell,  21  Wall.    (U.  S.) 

14.  Wilson  V.  Railroad  Co.,  129  264;  Pacific  Express  Co.  v.  Wallace, 
Fed.  Rep.  774;  Chicago,  etc.  Rail-  60  Ark.  100,  29  S.  W.  32;  Durgin 
road  Co.  v.  Wallace,  66   Fed.   Rep.  v.  Express  Co.,  66  N.  H.  277,  20  A. 

328,  9  L.  R.  A.  453. 

309 


§§  289,  290'    CONTKACTS  AGAINST  PUBLIC  POLICY.     Ch.  9 

proper  compensation  to  charge  for  the  risk,  and  the  degree  of 
care  to  bestow  in  discharging  its  trust;  and  a  limitation  of  its 
liability  not  to  exceed  fifty  dollars  unless  the  value  of  the  goods 
or  package  forwarded  is  truly  stated,  is  reasonable  and  con- 
sistent with  public  policy  f  but  this  limitation  must  be  brought 
home  to  the  knowledge  of  the  consig-nor.^ 

A  distinction  is  to  be  made  between  the  effect  of  this  notice 
by  a  carrier  by  which  it  is  sought  to  discharge  the  carrier  from 
duties  which  the  law  has  annexed  to  his  employment  and  those 
designed  simply  to  insure  good  faith  and  fair  dealing  of  his 
employer.  In  the  former,  notice  without  assent  to  the  attempted 
restriction,  is  ineffectual,  while  in  the  latter,  actual  notice  alone 
will  be  sufficient. ■* 

An  express  company  cannot  by  special  contract  limit  its  lia- 
bility for  negligence  or  misconduct.^ 

§  290.   Limiting  liability  beyond  its  own  line  of  carriage. — 

At  common  law  the  carrier  is  not  liable  for  loss,  in  the  absence 
of  special  contract,  beyond  the  point  at  which  it  is  to  deliver  the 
goods  to  a  connecting  line.  But  when  the  contract  of  the  ship- 
per is  with  the  carrier  first  receiving  the  goods,  that  such  car- 
rier should  deliver  the  goods  at  their  destination,  even  though 
it  contemplated  doing  so,  through  intermediate  carriers,  then  it 
assumes  the  liability  of  such  character  for  every  part  of  the 
route.  ^ 

But  where  a  carrier  receives  goods  marked  for  a  particular 
designation  beyond  its  terminus  of  its  line,  and  does  not  ex- 

2.  Oppenheimer  v.  Express  Co.,  5.  Armstrong  y.  Express  Co.,  159 
69  111.  62,  18  Am.  Rep.  596.  Pa.   St.   640,   28   A,    148;    Southern 

3.  Opperilieimer  v.  Express  Co.,  Express  Co.  v.  Hunnicutt,  54  Miss. 
69  111.  62,  18  Am.  Rep.  596.  566,    28   Am.   Rep.   385;    Boscowitz 

4.  Orange  County  Bank  v.  Brown,  v.  Express  Co.,  93  111.  523,  34  Am. 
9  Wend.  (N.  Y.)  115,  24  Am.  Dec.  Rep.  191;  Bank  v.  Express  Co.,  93 
129;  Farmers'  Bank  a\  Transpor-  U.  S.  174;  Muser  v.  Express  Co.,  74 
tation  Co.,  23  Vt.  186,  56  Am.  Dec.  Mo.  538. 

68;   Western  Transportation  Co.  v.  1.  St.  Joseph,  etc.,  R.  R.  Co.  v. 

Newhall,  24  111.  466,  76  Am.  Dec.  Palmer,  38  Neb.  463,  56  N.  W.  957, 
760  and  note.  22  L.  R.  A.  335. 

310 


Oh.    i)  I.lMlTl>NCi    LIABILITY    JbOR    NEGLIGENCE.  §    290 

pressly  undertake  to  deliver  them  at  the  point  designated,  the 
implied  contract  is  only  to  transport  over  its  own  line,  and 
forward,  according  to  the  usual  courso  of  business,  from  its 
terminus.^ 

The  prevailing  rule  in  this  country  is  that  a  common  carrier 
receiving  goods  to  be  transported  over  several  lines,  including 
his  own,  is  not  responsible  for  negligence  of  other  carriers  in  the 
route  beyond  his  own  line,  unless  he  has  specially  contracted  to 
transport  the  property  to  its  destination ;  and  that  receiving 
goods  marked  for  a  place  beyong  its  own  terminus  does  not  im- 
port an  undertaking  to  carry  to  the  destination  naraed.^ 

It  is  held  in  Illinois  that  a  stipulation  in  a  bill  of  lading  that 
the  carrier  will  not  be  liable  beyond  its  own  line,  does  not  bind 
the  shipper  unless  he  has  had  notice  of  it;  that  is  he  must 
read  it* 

The  first  carrier  occupies  the  relation  of  a  mere  forwarder  of 
the  goods  from  the  terminus  of  its  carriage.  Such  relation  does 
not  have  the  effect  of  making  its  stipulations  for  exemptions 
inure  to  the  benefit  of  the  connecting  carrier,  nor  can  it  for  any 
purpose,  bind  the  shipper  or  the  ovnier  of  the  goods.  ^ 

2.  Mulligan  v.  Raihoad  Co.,  'M>  612;  Burroughs  v.  Railroad  Co.,  100 
Iowa,  181,  14  Am.  Rep.  514;  Rome,  Mass.  26;  Hadd  v.  Express  Co.,  52 
etc.  R.  R.  Co.  V.  Sullivan,  25  Ga.  Vt.  335,  36  Am.  Rep.  757  and  note; 
228;  MclVnilan  v.  Railroad  Co.,  16  Root  v.  Railroad  Co.,  45  N.  Y.  524; 
Mich.  920;  Smith  v.  Express  Co.,  Crawford  v.  Railroad  Co.,  51  Miss. 
108  Mich.  572,  66  N.  W.  479;  Far-  222,  24  Am.  Rep.  626;  Grindle  v. 
mers,  etc..  Bank  v.  Transportation  Express  Co.,  67  Me.  317,  24  Am. 
Co.,  23  Vt.  186,  56  Am.  Dec.  68;  Rep.  31;  Knight  v.  Railroad  Co.,  13 
Hood  V.  Railroad  Co.,  22  Conn.  1,  R.  I.  572,  43  Am.  Rep.  46;  Dunbar 
502;  Keller  v.  Railroad  Co.,  174  Pa.  v.  Railroad  Co.,  36  S.  Car.  110,  15  S. 
St.  162,  34  A.  455;  Darling  v.  Kail-  E.  357,  31  Am.  St.  Rep.  860. 

road  Co.,    11   Allen    (Mass.),   295;  4.  Chicago,    etc.    R.    R.    Co.    v. 

Root  V.  Railroad  Co.,  45  N.  Y.  524;  Simon,  160  111.  648,  43  N.  E.  396. 

United  States  Express  Co.  v.  Rush,  5.  Babcock    v.    Railroad    Co.,   49 

24  Ind.  403;   Ortt  v.  Raihonrl  Co.,  N.  Y.  491;   Camden,  etc.  R.  R.  Co. 

36  Minn.  396,  31  N.  W.  519.  v.  Forsyth,  61  Pa.  St.  81.    See,  also, 

3.  Lawrence  v.  Railroad  Co.,  15  Union  State  Bank  v.  Railroad  Co. 
Minn.  313;   McEacherman  v.  Rail-  (Neb.),  59  L.  R.  A.  939. 

road  Co.,   101  Mich.  264,  59  N.  W. 


311 


§   291 


CONTKACTS    AGAINST    PUBLIC    POLICY. 


Ch.    9 


§  291.  Limiting  liability  as  to  losses  occurring  not  from  its 
own  negligence. —  A  common  carrier  may  limit  its  liability 
from  losses  or  injuries  occurring  from  other  causes  than  its  own 
negligence,  as  from  accident,  and  for  which  it  would  not  be 
liable  as  an  insurer.^  And  so  a  stipulation  in  a  bill  of  lading 
exempting  a  carrier  from  liability  for  loss  by  fire,  which  does 
not  happen  through  the  negligence  of  the  carrier,  is  reasonable 
and  will  be  sustained,^  In  ISTebraska,  a  common  carrier  cannot 
limit  its  common  law  liability  by  special  contract,  and  this  ap- 
plies to  interstate  shipments.^  Generally  a  common  carrier 
cannot  contract  to  relieve  itself  from  its  own  negligence.  In 
case  an  excursion  ticket  is  sold  for  less  than  the  full  rate,  as  a 
condition  that  the  passenger  will  assume  all  risks  from  acci- 
dents, he  can  then  hold  the  carrier  responsible  for  injuries 
caused  to  him  by  its  negligence,  but  this  fact  he  must  affirma- 
tively show.*  In  the  transportation  of  mail  by  a  railroad  com- 
pany, if  a  registered  package  is  lost,  the  company  is  not  liable 
to  the  owner  of  the  package,  even  if  the  loss  was  caused  by  the 
negligence  of  its  servants.^ 


1.  Chicago,  etc.  R.  R.  Co.  v. 
Davis,  159  III.  53,  42  N.  E.  382,  50 
Am.  St.  Rep.  143;  Davis  v.  Railroad 
Co.,  66  Vt.  290,  29  A.  313. 

2.  Davis  V.  Railroad  Co.,  66  Vt. 
290,  29  A.  313,  44  Am.  St.  Rep. 
852. 

3.  St.  Joseph,  etc.  R.   R.   Co.  v. 


Palmer,  38  Neb.  463,  56  N.  W.  957, 
22  L.  R.  A.  335. 

4.  Crary  v.  Railroad  Co.,  203  Pa. 
St.  525,  53  A.  363,  59  L.  R.  A.  815, 
93  Am.  St.  Rep.  778. 

5.  Boston  Ins.  Co.  v.  Railroad 
Co.,  118  Iowa,  423,  92  N.  W.  88. 
59  L.  R.  A.  796. 


312 


Cll.    9  LIMITING    LIABILITY    FOil    NEGLIGENCE.  §    292 

ARTICLE  II. 
Limitation  by  Notice   on   Ticket. 

Section  292.  Limitation  on  Tickets — Mileage. 

293.  Tickets  as  a  Contract — Limitations. 

294.  Coupon  Ticket  of  Carriers — Rights  of  Connecting  Lines. 

295.  Free  Passes. 

§  292.  Limitation  on  tickets  —  Mileage. —  Where  a  common 
carrier  cannot  limit  its  liability  by  any  notice  on  tickets  sold,  it 
cannot,  after  selling  a  return  ticket,  exact  as  a  condition  of  re- 
turn on  the  ticket,  that  the  passenger  shall  sign  it  before  a  given 
agent  who  shall  stamp  it,  though  the  ticket  was  sold  at  a  reduced 
price,  and  recites  such  condition  on  its  face.^ 

A  carrier,  in  the  absence  of  statute  to  the  contrary,  may  re- 
strict the  use  of  the  ticket  to  the  use  of  the  original  purchaser. 
The  words  "  not  transferable,"  printed  on  the  ticket,  will  have 
that  effect,  and  a  third  party  can  acquire  no  right  by  virtue  of 
such  a  ticket.^  But  if  a  third  party,  without  attempting  to  con- 
ceal his  identity,  presents  a  non-transferable  ticket  issued  to 
another,  and  his  claim  is  recognized  by  the  conductor,  he  is  en- 
titled to  the  rights  of  a  passenger.^ 

After  a  non-transferable  ticket  has  been  used  by  a  third 
party,  it  may  be  forfeited  in  the  hands  of  the  owner,  if  the  use 
by  another  was  known  to  him  and  by  his  consent  or  negligence.* 

A  mileage  book  is  a  contract  between  the  railroad  company 
and  passenger,  and  the  conductor  has  a  right  to  detach  coupons 
from  any  part  of  the  book.^  Some  railroad  companies  issue 
mileage  coupons  not  to  be  used  except  when  the  company  has 
no  ticket  office  at  the  station  where  the  passenger  enters  the 

1.  Phillips  V.  Banking  Co.,  93  note;  Cody  v.  Railroad  Co.,  4  Saw. 
Ga.  856,  20  S.  E.  247.'    See,  also,       C.  C.  114. 

Solan  V.  Railroad  Co.,  95  Iowa,  260,  3.  Robstelli   v.   Railroad   Co.,   33 

63  N.  W.  692,  28  L.  R.  A.  718,  58  Fed.  Rep.  796. 

Am.  St.  Rep.  430.  4.  Frederick  v.  Railroad  Co.,  53 

2.  Way  V.  Railroad  Co.,  64  Iowa,  Md.  201. 

48,  19  N.  828,  52  Am.  Rep.  431  and  5.  Eaton  v.  Mclntire,  88  Me.  578, 

34  A.  528. 

313 


§§    292,  293  CONTBACTS    AGAINST    PUBLIC    POLICY.  Ch.    9 

train.  In  such  case,  if  the  ticket  agent  at  the  place  of  taking 
the  train,  has  no  exchange  tickets,  the  holder  of  the  mileage 
ticket  can  offer  his  coupon,  which  is  complying  with  his  con- 
tract, and  the  conductor  has  no  right  to  expel  him  from  the 
train.^  And  so  a  passenger  who  buys  a  round-trip  ticked  good 
only  on  the  day  of  sale,  has  a  right  to  return  that  day  on  the 
only  train  running,  though  it  is  not  scheduled  to  stop  at  his 
station.^ 

§  293.  Ticket  as  a  contract  —  Limitations. —  Under  the 
earlier  decisions,  and  some  late  decisions,  it  is  held  that  a  rail- 
road ticket  is  merely  a  receipt  or  token  of  evidencing  the  pay- 
ment of  the  passage  money,  and  showing  that  the  purchaser  has 
paid  the  toll  enabling  him  to  ride  from  one  place  to  another.^ 
But  by  most  courts  a  ticket  is  now  held  to  be  a  contract  between 
the  purchaser  and  the  railroad  company.^  The  purchaser  of  a 
ticket  does  not  ordinarily  enter  into  any  special  negotiations  by 
which  the  carrier  undertakes  to  carry  him,  for  the  custom  estab- 
lished by  the  carrier  and  those  doing  business  with  him  has 
fixed  the  terms  upon  which  he  may  be  carried ;  and  if  he  accepts 
a  ticket  limiting  the  time  within  which  he  may  use  it  for  pas- 
sage, or  designating  the  train  upon  which  he  may  use  it  for  pas- 
sage, or  designating  the  train  upon  which  it  shall  be  used,  he  is 
bound  thereby.      The  carrier  may  offer  a   ticket  good   upon 

6.  Pennsylvania  R.  R.  Co.  v.  Len-  N.  Y.  455 ;  Dietrich  v.  Railroad  Co., 
hart,  120  Fed.  Rep.  61,  35  Ch.  L.  71  Pa.  St.  432,  10  Am.  Rep.  711; 
News,  181,  56  C.  C.  A.  467;  N.  Y.  Chicago,  etc.,  R.  R.  Co.  v.  Dumser, 
and  Erie  R.  R.  Co.  v.  Winter,  143  161  111.  190,  43  N.  E.  698;  Railroad 
U.  S.  60,  12  S.  Ct.  356;  Pittsburg,  Co.  v.  Bartram,  11  Ohio  St.  457; 
etc.  R.  R.  Co.  V.  Russ,  57  Fed.  Rep.  Burdick  v.  People,  149  III.  600; 
822,  6  C.  C.  A.  597,  18  U.  S.  App.  Chicago,  etc.,  R.  R.  Co.  v.  Mulford, 
279;  Northern  Pac.  R.  R.  Co.  v.  162  111.  522;  44  N.  E.  861,  35  L.  R. 
Pauson,  70  Fed.  Rep.  585,  30  L.  R.  A.  599. 

A.   730,   17   C.  C.  A.  287,  44  U.  S.  2.  Sleeper    v.    Railroad   Co.,    100 

App.  178.  Pa.  St.  259,  45  Am.  Rep.  380;  New 

7.  Illinois  Cent.  R.  R.  Co.  v.  Har-  York,  etc.,  R.  R.  Co.  v.  Bennett,  50 
ris,  81  iliss.  208,  32  So.  309,  59  L.  Fed.  Rep.  496,  1  C.  C.  A.  544,  6  U. 
R.  A.  742,  95  Am.  St.  Rep.  466.  S.  App.   95 ;   Railroad  Co.   v.   Fitz- 

1.  Hubbard    v.    Railroad   Co.,    15        gerald,  47  Ind.  79. 

314 


Ch.    9  LIMITING    LIABILITY    FOR    NEGLIGENCE.  §    293 

certain  trains  within  a  specified  time,  and  to  be  used  only  by  the 
person  purchasing  it,  and  upon  such  terms  as  are  embraced 
therein. 

When  a  passenger  knowingly  accepts  a  ticket  containing 
limitations,  and  imposing  upon  him  certain  duties  to  make  it 
available  for  passage,  he  is  bound  thereby.^ 

As  between  the  passenger  and  the  conductor,  the  face  of  the 
ticket  is  conclusive  evidence  of  the  passenger's  right  to  ride.* 

There  is  a  conflict  upon  the  question  of  the  rights  and  duties 
of  the  conductor  and  passenger  respectively,  when  an  authorized 
agent  sells  a  passenger  a  ticket  different  from  what  he  asked 
and  pay  for,  and  one  which  does  not  entitle  him  to  the  passage 
desired.  One  line  of  authorities  holds  that  the  conductor  cannot 
be  expected  to  listen  to  explanations,  and  the  passenger  should 
either  pay  his  fare  or  walk  quietly  from  the  car,  and  then  sue 
for  breach  of  the  contract ;  but  should  he  attempt  to  remain  on 
the  train  without  paying  fare,  and  is  expelled,  no  recovery  can 
be  had.^ 

But  the  better  doctrine  is  that  the  conductor  under  such  cir- 
cumstances has  no  right  to  expel  the  passenger,  and  if  he  does 
so,  the  company  is  liable  in  damages  therefor.®     And  condi- 

3.  Callaway  v.  Mallett,  15  Ind.  737,  9  L.  R.  A.  132  and  note,  26 
App.  366,  44  N.  E.  198,  57  Am.  St.  Am.  Rep.  913;  Sheldon  v.  Railroad 
Rep.  238.  Co.,  29  Ohio  St.  214;  Townsend  v. 

4.  Bradshaw  v.  Railroad  Co.,  135  Railroad  Co.,  56  N.  Y.  295,  5  Am. 
Mass.  407,  46  Am.  Rep.  481  and  Rep.  419;  Frederick  v.  Railroad  Co., 
note;    McKay  v.   Railroad   Co.,    34  37  Mich.  342,  26  Am.  Rep.  531. 

W.  Va.  65,  9  L.  R.  A.  132  and  note,  6.  Murdock  v.  Railroad  Co.,  137 

11  S.  E.  737,  26  Am.  St.  Rep.  913;  Mass.  293,  50  Am.  Rep.  307;  Phila., 

Townsend  v.  Railroad  Co.,  56  N.  Y.  W.  and  B.  Railroad  Co.  v.  Rice,  C4 

295,   15  Am.  Rep.  419;   Boyland  v.  Md.    63.    21    A.    97;    Bradshaw    v. 

Railroad  Co.,  132  U.  S.   146,   10  S.  Railroad    Co.,    135    Mass.    407,    46 

Ct.  50.  Am.   Rep.    481    and  note;    Head  v. 

5.  Railroad  Co.  v.  Vanatta,  21  Railroad  Co.,  79  Ga.  358,  3  S.  E. 
111.  188,  14  Am.  Dec.  96;  Rose  v.  621,  11  Am.  St.  Rep.  434;  Railroad 
Railroad  Co.,  106  N.  Car.  168,  11  v.  Fix,  88  Ind.  381,  45  Am.  Rep. 
S.  E.  526;  Peabody  v.  Railroad  Co.,  464;  Pa.  Railroad  Co.  v.  Bray,  125 
21  Oreg.  121,  20  P.  1053,  12  L.  R.  Ind.  229,  25  X.  E.  439;  P.^iilroad  Co. 
A.  823  and  note;  McKay  v.  Rail-  v.  Martino,  2  Tex.  Civ.  App.  634. 
road  Co.,  34  W.  Va.  65,  11   S.  E. 

315 


§§    293,  294  CONTBACTS    AGAINST    PUBLIC    POLICY.  Ch.    9 

tions  printed  on  the  back  of  a  passenger's  ticket,  exempting  a 
carrier  from  liability  for  loss  or  damages  to  baggage  under  cer- 
tain circumstances  or  beyond  a  specified  amount,  are  not  bind- 
ing on  the  passenger,  if  not  signed  or  seen  by  him,  nor  referred 
to  in  the  contract  on  the  face  of  the  ticket,  nor  otherwise  brought 
to  his  attention,''  This  rule  also  applies  to  bills  of  lading.*  The 
question  of  notice  must  be  submitted  to  the  jury  as  a  question 
of  fact." 

§  294.  Coupon  tickets  of  carriers  —  Rights  of  connecting 
lines. — Eailroad  companies  generally  sell  tickets  with  coupons 
for  carriage  over  connecting  lines.  But  the  selling  company 
does  not  guarantee  that  the  other  carriers  will  honor  such  cou- 
pons and  is  not  responsible  in  case  the  connecting  line  refuses 
to  accept  such  coupon,  as  the  selling  company  is  only  an  agent; 
the  selling  company  does  not  impliedly  contract  that  such  tickets 
will  be  recognized  and  honored  by  such  connecting  lines,  but 
merely  that  it  is  the  agent  of  such  lines  and  has  authority  to 
issue  such  tickets.^  And  so,  a  ticket  issued  with  coupons  "  good 
for  one  first-class  passage  "  for  an  entire  journey  does  not  con- 
stitute a  contract  by  the  selling  company  to  transport  the  holder 
over  the  connecting  lines,  so  as  to  make  it  liable  for  failure  of 
the  connecting  lines  to  honor  the  coupons.^ 

7.  The  Majestic,  17  U.  S.  597.  Railways,  185;  Chicago,  etc.,  R.  R. 
See,  also,  Richardson  v.  Rountree  Co.  v.  Dumser,  161  111.  190,  43  N. 
(1894),  App.  Cas.  217;  Henderson  E.  698;  Pennsylvania  Railroad  Co. 
V.  Stevenson,  L.  R.  2  H.  L.  470.  v.  Connell,  112  111.  295,  54  Am.  Rep. 

8.  Railroad  Co.  v.  Navigation,  16  238  and  note. 

Wall.  (U.  S.)  318.  2.  Chicago,  etc.,  R.  R.  Co.  v.  Mul- 

9.  Malone  v.  Railroad  Co.,  12  ford,  162  111.  522,  4~4  N.  E.  861,  35 
Gray  (Mass.),  388,  74  Am.  Dec.  L.  R.  A.  599.  See,  also,  Knight  v. 
598.  See,  also,  Brown  v.  Railroad  Railroad  Co.,  56  Me.  235;  Fursten- 
Co.,  11  Cush.  (Mass.)  97;  Trans-  heim  v.  Railroad  Co.,  9  Heisk. 
portation  Co.  v.  Thielbar,  86  111.  (Tenn.)  238;  Mosher  v.  Railroad 
71;  Rawson  v.  Railroad  Co.,  48  Co.,  127  U.  S.  390,  8  S.  Ct.  324; 
N.  Y.  212,  8  Am.  Rep.  543;  Wilson  Hood  v.  Railroad  Co.,  22  Conn.  1; 
V.  Railroad  Co.,  21  Gratt.  (Va.)  Young  v.  Railroad  Co.,  115  Pa.  St. 
654.  112,  7  A.  741;   Lundy  v.  Railroad 

1.  Chicago,    etc.,    R.    R.    Co.    v.        Co.,  66  Cal.  191;  4  P.  1193,  56  Am. 
Mulford,  162  111.  522,  44  N.  E.  861,        Rep.  lOO. 
35    L.    R.    A.    599;    2    Redfield    on 

316 


Ch.    0  LIMITING    LIABILITY    FOR    NEGLIGENCE,  §    295 

§  295.  Free  passes. —  In  many  jurisdictions  one  who  accepts 
and  uses  a  free  pass,  as  a  pure  gratuity,  on  condition  that  he 
will  assume  all  risk  of  personal  injury,  must  be  deemed  to  have 
accepted  it  on  that  condition  whether  he  reads  it  or  not.  Such 
a  contract,  exempting  a  carrier  from  liability,  is  not  prohibited 
by  any  rule  of  public  policy,  and  is  effectual  to  exonerate  the 
carrier  from  liability  for  the  negligence  of  his  servants.^  Under 
this  dietrine  where  a  party  accepts  a  pass,  he  does  so  on  the 
conditions  fully  expressed  therein,  whether  he  actually  reads 
them  or  not.^ 

In  England  a  common  carrier  has  practically  unlimited  power 
to  provide  by  contract  against  liability  for  negligence,^  even 
gross  negligence.^  In  Xew  York  and  New  Jersey  a  carrier  may 
contract  with  free  passengers  against  liablity  for  all  degrees  of 
negligence,  provided  the  exemption  is  in  clear  and  unmistakable 
terms.^  And  some  courts  seek  to  distinguish  the  different  de- 
grees of  negligence  and  concede  the  right  to  make  such  exemp- 
tions as  to  a  free  passenger,  in  all  cases  of  ordinary  negligence, 
but  decline  to  extend  the  doctrine  to  cases  of  gross  negligence.' 

1.  Northern  Pac.  R.  R.  Co.  v.  3.  McCawley  v.  Railway  Co.,  L. 
Adams,  187  U.  S.  643,  192  U.  S.  R.  8  Q.  B.  57 ;  Peck  v.  Railway,  10 
440;    Muldoon  v.   Railroad   Co.,    10        H.  L.  Cas.  473. 

Wash.  311,  38  P.  995,  45  Am.  Rep.  4.  Gallin  v.   Railway   Co.,  L.   R. 

787;    Rogers  v.   Steamboat  Co.,   86  10  Q.  B.  212.     See,  also,  Alexander 

Me.   261,  29  A.    1069,  25   L.  R.  A.  v.  Railway  Co.,  33  Upp.  Can.  Q.  B. 

491;    Quimby  v.  Railroad  Co.,   150  474. 
Mass.  366,  23  N.  E.  205.  5.  Kenney   v.    Railroad   Co.,    125 

2.  Fonseca  v.  Steamboat  Co.,  153  N.  Y.  422,  26  N.  E.  626;  Wells  v. 
Mass.  553,  27  N.  E.  665,  12  L.  R.  Railroad  Co.,  24  N.  Y.  181;  Poncher 
A.  340  and  note,  25  Am.  St.  Rep.  v.  R<ailroad  Co.,  49  N.  Y.  263,  10 
660;  Rogers  v.  Steamboat  Co.,  86  Am.  Rep.  364;  Maynard  v.  Railroad 
Me.261,29  A.  1065,  25  L.  R.  A.  491;  Co.,  71  N.  Y.  180,  27  Am.  Rep.  28; 
Compare  Gulf,  etc.  R.  R.  Co.  v.  Mc-  Maguire  v.  Dinsmore,  56  N.  Y.  168; 
Gowan,  65  Tex.  640;  Jacobus  v.  Nichols  v.  Railroad  Co.,  89  N.  Y. 
Railroad  Co.,  20  Minn.  125,  18  Am.  370;  Kinney  v.  Railroad  Co.,  32 
Rep.  360;  Mobile,  etc.,  R.  R.  Co.  v.  X.  J.  L.  409,  34  N.  J.  L.  513,  90 
Hopkins,  51  Ala.  486;  Rose  v.  Rail-  Am.  Dec.  675,  3  Am.  Rep.  265.  See, 
road  Co.,  39  Iowa,  246;  Louisville,  also.  Railroad  Co.  v.  Bishop,  50  Ga. 
etc.,  R.  R.  Co.  V.  Faylor,  126  Ind.  465. 

126,  25  N.  E.  869;  Railroad  Co.  v.  6.  Illinois    Central    Railroad   Co. 

Stevens,  95  U.  S.  655.  v.   Read,   37   111.   484,   87   Am.   Dec. 

317 


295 


CONTRACTS    AGAINST    PUBLIC    POLICY. 


Ch.    9 


And  others  refuse  to  give  effect  to  any  stipulation  absolving  the 
carrier  from  liability  for  any  degree  of  negligence.' 

In  Connecticut,  Massachusetts  and  Maine,  such  special  con- 
tracts relieving  the  carrier  from  liability  to  free  passengers,  are 
not  forbidden  by  any  principle  of  public  policy.^  These  cases 
seem  to  be  clearly  in  harmony  with  the  principles  of  justice  and 
common  right.  In  what  manner  the  public  welfare  or  the  safety 
of  human  life  is  involved,  or  any  of  the  cherished  interests  of 
the  law  are  invalid  by  allowing  a  party  to  ride  on  a  pass  at  his 
own  risk,  does  not  clearly  and  satisfactorily  appear. 

It  is  held,  in  case  of  free  passengers,  that  since  the  carrier  is 
not  bound  to  transport  them,  it  may  impose  such  terms,  short  of 
willful  negligence  or  injury,  as  it  chooses,  as  a  condition  of 
carrying  them.®  But,  in  the  absence  of  any  special  contract  or 
stipulation,  the  carrier  is  bound  to  exercise  the  same  degree  of 
care  toward  a  free  passenger  as  toward  a  passenger  for  hire.'^° 


260;  Railroad  Co.  v.  Mimdy,  21 
Tnd.  48,  83  Am.  Dec.  339;  Annas 
V.  Railroad  Co.,  67  Wis.  46,  30  N. 
W.  282,  58  Am.  Rep.  848. 

7.  Railroad  Co.  v.  Henderson,  51 
Pa.  St.  315;  Railroad  Co.  v.  Cur- 
ran,  19  Ohio  St.  1,  2  Am.  Rep.  362; 
Jacobus  V.  Railroad  Co.,  20  Minn. 
125,  18  Am.  Rep.  360;  Gulf,  etc., 
R.  R.  Co.  V.  McGowan,  65  Tex. 
640;  St.  Louis,  etc.  R.  R.  Co.  v. 
Nelson,  20  Tex.  Civ.  App.  536,  49 
S.  W.  710.  See,  also,  N.  Y.  Cent. 
R.   R.   Co.   V.   Lockwood,    17    Wall. 

(U.  S.)   357. 

8.  Griswold  v.  Railroad  Co.,  53 
Conn.  371,  4  A.  261,  55  Am.  Rep. 
115;  Quimby  v.  Railroad  Co.,  150 
Mass.  365,  23  N.  E.  205,  5  L.  R.  A. 
846;  Rogers  v.  Steamboat  Co.,  86 
Me.  261,  29  A.  1069,  25  L.  R.  A. 
491. 

9.  Quimby  v.  Railroad  Co.,  150 
Mass.  365,  23  N.  E.  205,  5  L.  R.  A. 
846;  Rogers  v.  Steamboat  Co.,  86 
Me.   261,  29  A.   106^,  25   L.  R.  A. 


491;  Griswold  v.  Railroad  Co.,  53 
Conn.  371,  4  A.  261,  55  Am.  Rep. 
115. 

10.  Quimby  v.  Railroad  Co.,  150 
Mass.  365,  23  N.  E.  205;  Griswold 
V.  Railroad  Co.,  53  Conn.  371,  4  A. 
261;  Rogers  v.  Steamboat  Co.,  86 
Me.  261,  29  A.  106^,  25  L.  R.  A. 
491;  Rose  v.  Railroad  Co.,  39  Iowa, 
246;  Railroad  Co.  v.  Mieche,  83 
111.  428;  Pittsburgh,  etc.,  R.  R.  Co. 
V.  Caldwell,  74  Pa.  St.  421;  Blair 
V.  Railroad  Co.,  66  N.  Y.  313,  23 
Am.  Rep.  55;  Gulf,  etc.,  R.  R.  Co. 
V.  McGowan,  65  Tex.  640;  Gille- 
nevatu  v.  Railroad  Co.,  5  Ind.  339, 
61  Am.  Dec.  101 ;  Siegrist  v.  Arnat, 
10  Mo.  App.  197 ;  Todd  v.  Railroad 
Co.,  3.  Allen  (Mass.),  18,  80  Am. 
Dec.  49;  Files  v.  Railroad  Co.,  149 
Mass.  204,  21  N.  E.  311,  14  Am.  St. 
Rep.  411;  Perkins  v.  Railroad  Co., 
24  N.  Y.  196,  82  Am.  Dec.  282  and 
note;  Jacobus  v.  Railroad  Co.,  20 
Minn.   125,   18  Am.  Rep.   360. 


318 


Cb.     9  LIMITING    LIABILITV    l<'OK    NEGLIGENCE.  §    295 

So,  if  a  passenger  insists  upon  riding,  or  is  required  by  tbe 
nature  of  his  occupation  to  ride,  in  a  place  not  provided  for  pas- 
sengers, it  has  been  held  that  the  carrier  properly  may  say  to 
him  that  he  must  take  the  risk,  however,  arising." 

If  a  person  can  show  that  the  pass  had  been  issued  to  him 
under  conditions  sufficient  to  make  his  carriage  one  for  hire  in 
any  legal  sense,  it  is  competent  for  him  to  show  that  his  atten- 
tion had  not  been  called  to  the  stipulation  exonerating  the  car- 
rier from  liability,  and  that  he  had  never  seen  it  or  given  his 
assent  to  it;  this  is  the  law  of  many  States.^^  But  as  heretofore 
stated,  if  the  passenger  is  not  one  for  hire,  it  is  of  no  conse- 
quence whether  or  not  he  knows  of  and  had  assented  to  the  as- 
sumption of  the  risk  of  accident  imposed  by  the  stipulation. 
And  so  when  a  party  accepts  a  free  pass  and  avails  himself  of 
the  privileges  set  forth,  he  is  bound  by  the  conditions.^^  If  the 
pass  is  issued  as  part  of  the  consideration  of  a  contract  of  which 
it  is  collateral,  then  the  passenger  can  recover  for  the  accident 
caused  by  the  railroad's  negligence."  And  if  the  passenger  rides 
on  the  special  invitation  of  the  president  of  the  railroad  without 
any  stipulation  or  condition  whatever,  then  the  company  will  be 
liable  for  the  accident  caused  by  its  own  negligence.^^  In  gen- 
eral, when  one  accepts  a  gratuity  qualified  by  conditions,  he  is 
estopped  to  repudiate  the  condition  and  at  the  same  time  accept 
the  privileges  conferred.  This  rule  is  in  conformity  with  the 
moral  sense  which  justly  holds  those  who  accept  gratuities  and 
acts  of  hospitality  to  perform  the  condition  on  which  such 
gratuities  are  bestowed.     Under  such  conditions  the  common 

11.  ilosmer  v.  Railroad  Co.,  156  Mass.  365,  23  N.  E.  205,  5  L.  R.  A. 
Mass.  506  31  N.  E.  652;  Robertson  846;  Griswoid  v.  Railroad  Co.,  53 
V.  Railroad  Co.,  156  Mass.  525,  31  Conn.  371,  4  A.  261,  55  Am.  Rep. 
N.  E.  650;  Bates  v.  Railroad  Co.,  115;  Muldoon  y.  Railroad  Co.,  10 
147  Mass.  255,  17  N.  E.  633.  See,  Wash.  311,  38  P.  ^95,  45  Am.  St 
also,  Doyle  v.  Railroad  Co.,  166  Rep.  787;  111.  Cent.  R.  R.  Co.  v. 
Mass.  492,  44  N.  E.  611,  33  L.  R.  A.  Read,  37  111.  486,  87  Am.  Dec.  260. 
844,  55  Am.  St.  Rep.  417.  14.  N.  Y.  Cent.  Railroad  Co.  v. 

12.  The     Majestic,     166     U.     S.  Tx)ckwood,  17  Wall.  (U.  S.)  357. 
375,  17  S.  Ct.  597.  15.     Railroad     Co.     v.     Demy, 

13.  Quimby  v.  Railroad  Co.,  150  14  How.  U.  S.)   468. 

319 


§§    295,  296  CONTEACTS    AGAINST    PUBLIC    POLICY.  Ch.    9 

carrier  becomes,  or  holds  the  position  of,  a  gratuitous  bailee. 
A  common  carrier  is  one  that  pursues  the  public  employment  of 
conveying  goods  or  passengers  for  hire ;  so  if  a  passenger  is  not 
carried  for  hire  and  assumes  all  responsibility  of  the  carriage, 
he  cannot  recover  for  injuries  caused  by  the  railroad  company.^' 
The  courts  are  not  agreed  on  this  question  of  riding  on  a  free 
pass,  as  to  the  liability  of  the  common  carrier  for  his  negligence. 
Some  of  the  courts  hold  that  a  stipulation  of  a  passenger  riding 
on  a  free  pass  to  assume  the  risk  is  void  as  against  public 
policy,  and  this  doctrine  cannot  be  changed  by  a  decision  of  the 
Federal  Supreme  Court,  as  the  question  is  not  one  of  Federal 
nature,  so  a  decision  of  that  court  is  in  no  sense  binding  on  the 
State  courts.  However,  the  weight  of  authority  is  with  that 
court" 

ABTICLE  III. 

As  TO  Telegraph  and  Telephone  Companies. 

Section  296.  Telegraph  Companies. 

297.  Limiting  Liability  for  Mistake  in  Sending  Message. 

298.  Telephone  Companies. 

§  296.  Telegraph  companies. —  Telegraph  companies  resem- 
ble common  carrires,  in  that  they  are  instruments  of  commerce ; 
and  in  that  they  exercise  a  public  employment,  and  are  therefore 
bound  to  serve  all  customers  alike,  without  discrimination.  They 
have  a  duty  to  the  public,  to  receive,  to  the  extent  of  their  ca- 
pacity, all  messages  clearly  and  intelligently  written,  and  to 
transmit  them  upon  reasonable  terms.  But  they  are  not  com- 
mon carriers;  their  duties  are  different,  and  are  performed  in 
different  ways ;  and  they  are  not  subject  to  the  same  liabilities.* 

16.  Duncan  v.  Railroad  Co.,  113  Liability  for  Negligence  in  Gratui- 
Fed.  Rep.  508 ;  Boering  v.  Railroad  tous  Passes." — 56  Cent.  L.  Jour. 
Co.,  20  D.  C.  App.  500 ;  affirmed  by       204. 

U.  S.  S.  Ct„  37  Chi.  Legal  News,  33.  1.  Express    Co.   v.    Caldwell,    21 

17.  Muldoon  v.  Railroad  Co.,  Wall.  (U.  S.)  264,  269,  270;  Tele- 
7  Wash.  528,  36  P.  422.  See,  22  graph  Co.  v.  Texas,  1  Am.  Electl. 
L.  R.  A.  794  and  note,  38  Am.  St.  Cas.  373,  105  U.  S.  460,  464. 

Rep.  901.  See  "Stipulations  Against 

320 


Cll.    9         LIMITING  LIABILITY   FOR  NEGLIGENCE.  §§    296,  297 

Like  common  carriers,  they  cannot  contract  with  their  em- 
ployers for  exemption  from  liability  for  the  consequences  of 
their  own  negligence.  But  they  may,  by  such  contracts,  or  hy 
their  rules  and  regulations  brought  to  the  knowledge  of  their 
employers,  limit  the  measure  of  their  responsibility  to  a  rea- 
sonable extent.  Whether  their  rules  are  reasonable  or  un- 
reasonable must  be  determined  with  reference  to  public  policy, 
precisely  as  in  the  case  of  a  carrier.^ 

It  was  said  in  one  case  that  it  is  no  longer  an  open  question  that 
telephone  and  telegraph  companies  are  subject  to  the  rules  gov- 
erning common  carriers  and  others  engaged  in  like  employment.^ 
But  that  case  has  regard,  as  is  evident  from  the  contract,  and 
from  the  reference  to  another  case,*  to  those  rules  only  which 
require  persons  or  corporations  exercising  public  employment 
to  serve  all  alike,  without  discrimination,  and  which  make 
them  subject  to  legislative  regulations  f  but  they  are  not  com- 
mon carriers.®  Some  decisions  hold  that  a  telegraph  company 
is  a  common  carrier,^  and  that  it  cannot  make  a  valid  contract 
against  its  own  negligence.* 

§  297.   Limiting  liability  for  mistake  in  sending  message. — 

A  stipulation  by  a  telegraph  company  and  the  sender  of  a  mes- 
sage, that  the  company  shall  not  be  liable  for  mistakes  in  the 

2.  Express  Co.  v.  Caldwell,  21  464;  Primrose  v.  Telegraph  Co.,  6 
Wall.   (U.  S.)   264.  Am.  Electl.  Cas.  809,  154  U.  S.  1, 

3.  Delaware     &     Atlantic     Tele-        14  S.  Ct.  1098. 

phone     Co.    v.     Telegraph     Co.,    4  7.  Western  Union  Tel.  Co.  v.  Call 

Am.     Electl.     Cas.     579,     50     Fed.  Pub.   Co.,   5   Am.   Electl.   Cas.   673, 

Rep.  677,  2  C.  C.  A.  1,  13  U.  S.  App.  44     Neb.     326,     62     N.     W.     506, 

30,  105.  27  L.  R.  A.   622,  48  Am.   St.  Rep. 

4.  Budd  V.  New  York,  143  U.  S.  724. 

517,  12  S.  Ct.  468.  8.  Brown  v.  Tel.  Co.,  Ill  N.  Car. 

5.  Primrose  v.  Telegraph  Co.,  5  187,  4  Am.  Electl.  Cas.  774, 
Am.  Electl.  Cas.  809,  154  U.  S.  1,  16  S.  E.  179,  17  L.  R.  A.  648, 
22,  14  S.  Ct.  1098.  32  Am.  St.  Rep.  793;  Gillis  v.  Tel. 

6.  Express  Co.  v.  Caldwell,  21  Co.,  2  Am.  Electl.  Cas.  841, 
Wall.  (U.  S.)  264,  269,  270;  Tele-  61  Vt.  461,  17  A.  736,  4  L.  R.  A. 
graph  Co.  \.  Texas,  1  Am.  611  and  note,  15  Am.  St.  Rep.  917. 
Electl.    Cas.    373,    105    U.    S.  460, 

321 


§  29Y 


CONTRACTS    AGAINST    PUBLIC    POLICY. 


Ch.    9 


transmission  or  delivery  of  a  message,  beyond  the  sum  received 
for  sending  it,  unless  the  sender  orders  it  to  be  repeated  by  being 
telegraphed  back  to  the  originating  office  for  comparison,  and 
pays  half  that  sum  in  addition,  is  reasonable  and  valid.  This  is 
the  settled  law  in  many  of  the  States  and  in  England.^  As  is 
generally  held  a  telegraph  company  has  a  clear  right  to  protect 
itself  against  extraordinary  risks  and  liability  by  such  rules  and 
regulations  as  may  be  required  for  the  purpose.  But  it  cannot, 
by  rules  and  regulations  of  its  own  making,  protect  itself  against 
liability  for  the  consequence  of  its  own  willful  conduct,  or  gross 
negligence,  or  any  conduct  inconsistent  with  good  faith.  It  is 
bound  to  use  due  deligence,  but  not  to  use  extraordinary  care 
and  precaution.  But  by  no  device  can  it  avoid  liability  for 
fraud,  for  willful  wrong,  or  for  the  gross  negligence  which,  if 
it  does  not  intend  to  occasion  injury,  is  reckless  of  consequences, 
and  transcends  the  bound  of  right  with  full  knowledge  that  mis- 
chief may  ensue.  ^ 


1.  Jarboe  v.  Telegraph  Co.,  63 
Mo.  App.  226  j  Kiley  v.  Telegraph 
Co.,  2  Am.  Electl.  Cas.  650, 
109  N.  Y.  231,  235,  237,  16  N. 
E.   75;    Primrose  v.   Telegraph  Co., 

5  Am.  Electl.  Cas.  809,  154 
U.  S.  1,  14  S.  Ct.  1098;  Western 
Union  Tel.  Co.  v.  Blanchard,  1 
Am.  Electl.  Cas.  404,  68  Ga. 
299,  45  Am.  Rep.  480  and  note; 
Hart  V.  Telegraph  Co.,  1  Am. 
Electl.     Cas.     734,     66     Cal.     579, 

6  P.  631,  56  Am.  Rep.  119  and  note; 
Wann  v.  Telegraph  Co.,  37  Mo.  472, 
90  Am.  Dec.  395;  Breeze  v.  Tele- 
graph Co.,  48  N.  Y.  132,  8  Am.  Rep. 
520;  Grinnell  v.  Telegraph  Co., 
1  Am.  Electl.  Cas.  70,  113 
Mass.  299,  18  Am.  Rep.  485;  Camp 
V.  Telegraph  Co.,  1  Met.  (Ky.)  164, 
17  Am.  Dec.  461  and  note;  Western 
Union  Tel.  Co.  v.  Carew,  15  Mich. 
525;    McAndrew   v.   Telegraph   Co., 


17  C.  B.  3;  Baxter  v.  Telegraph  Co., 
37  Up.  Can.  Q.  B.  470;  Compare 
Western  Union  Tel.  Co.  v.  Craw- 
ford, 110  Ala.  460,  23  So.  111. 

2.  Passmore  v.  Telegraph  Co., 
1  Am.  Electl.  Cas.  168,  9 
Phil.  (Pa.)  90,  78  Pa.  St.  238; 
Birney  v.  Telegraph  Co.,  18  Md. 
341,  358,  81  Am.  Dec.  697  and  note; 
United  States  Tel.  Co.  v.  Gilder- 
sieve,  29  Md.  232,  96  Am.  Dec.  519; 
Western  Union  Tel.  Co.  v.  Steven- 
son, 3  Am.  Electl.  Cas.  764, 
128  Pa.  St.  442,  18  A.  441,  5 
L.  R.  A.  515,  15  Am.  St.  Rep.  687; 
Ellis  V.  Telegraph  Co.,  13  Allen 
(Mass.),  226;  Redpath  v.  Telegraph 
Co.,  1  Am.  Electl.  Cas.  40, 
112  Mass.  71,  17  Am.  Rep.  69; 
Grinnell  v.  Telegraph  Co.,  1  Am. 
Electl.  Cas.  70,  113  Mass.  299,  18 
Am.  Rep.  485;  Clement  v.  Tele- 
graph Co.,  1  Am.  Electl.  Cas.  671, 


322 


Ch.    9  LIMITING    LIABILITY    FOR    NEGLIGENCE.  §    297 

There  are  cases  in  wliich  sncli  regulations  have  been  con- 
sidered to  be  wholly  void.  Many  of  them,  however,  upon  ex- 
amination, appear  to  have  been  decided  by  considerations  which 
do  not  apply  the  doctrine  already  discussed.  Some  of  them 
were  actions  brought  not  by  the  sender,  but  by  the  receiver  of 
the  message,  who  had  no  notice  of  the  printed  conditions  until 
after  he  received  it,  and  could  not,  therefore,  have  agreed  to 
them  in  advance.^  Others  were  cases  or  night  messages,  in 
which  the  whole  provision  as  to  repeating  was  omitted,  and  a 
sweeping  and  comprehensive  provision  substituted,  by  which 
in  effect,  all  liability  beyond  the  price  paid  was  avoidable.* 

And  when  the  telegraph  company  does  not  undertake  to  re- 
strict its  liability  by  express  stipulation,  the  sender  may  recover 
damages.^ 

In  some  of  the  States  the  decisions  are  controlled  by  statutes. 
Thus,  in  Indiana  telegraph  companies  are  made  liable  by  stat- 
ute for  special  damages  by  failure  or  negligence  of  their  opera- 
tors or  servants,  in  sending  messages.* 

But  there  are  decisions,  not  controlled  by  statute,  which  hold 
that  a  stipulation  that  the  sender  of  a  message,  if  he  would  hold 
the  company  liable  in  damages  beyond  the  sums  paid,  must 
have  it  repeated  and  pay  half  that  sum  in  addition,  is  void  as 
against  public  policy. '^  These  cases  hold  that  it  is  against  public 
policy  to  permit  telegraph  companies  to  secure  exemptions  from 

137  Mass.  463;  Dixon  v.  Telegraph  62,  33  Wis.  558,  564,  14  Am.  Rep. 

Co.,  6  Am.  Electl.  Cas.  803,  3  App.  775. 

Div.  60,  38  N.  Y.  S.  1056.  5.  Rittenhouse  v.  Telegraph  Co., 

3.  New  York,  etc.,  Tel.  Co.  v.  1  Daly  (N.  Y.),  474,  44  N.  Y.  263; 
Dryburg,  35  Pa.  St.  298,  78  Am.  Turner  v.  Telegraph  Co.,  1  Am. 
Dec.  338;  Harris  v.  Telegraph  Co.,  Electl.  Cas.  208,  41  Iowa,  458,  20 
9  Phila.    (Pa.)    88;    De  La  Grange  Am.   Kop.    605. 

V.  Telegraph  Co.,  25     La.  Ann.  383.  6.  Western    Union    Tel.     Co.    v. 

4.  True  v.  Telegiaph  Co.,  60  Me.  Meek,  1  Am.  Electl.  Cas.  138,  49 
9,  18,  11  Am.  Rep.  156  and  note;  Ind.  53;  Western  Union  Tel.  Co.  v. 
Bartlett  v.  Telegraph  Co.,  1  Am.  Fenton,  1  Am.  Electl.  Cas.  198,  52 
Electl.  Cas.  45,  62  Me.  209,  215,  16  Ind.  1. 

Am.  Rep.  437;  Candee  v.  Telegraph  7.     Tyler      v.      Telegraph      Co., 

Co.,  1  Am.  Electl.  Cas.  99,  34  Wis.  1     Am.    Electl.     Cas.     14,    60    111. 

471,  476,  17  Am.  Rep.  452;  Hibbard  421,    14   Am.   Rep.   38,   74   111.    168, 

V.  Telegraph  Co.,  1  Am.  Electl.  Cas.  24  Am.  Dec.  279  and  note;  Ayer  v. 

323 


§  297 


CONTRACTS    AGAINST    PUBLIC    POLICY. 


Ch.    9 


the  consequences  of  their  own  gross  negligence  by  contract.  So, 
notwithstanding  any  special  conditions  which  may  be  contained 
in  a  contract  between  the  company  and  the  sender  of  a  message 
restricting  liability  of  the  company  in  case  of  an  inaccurate 
transmission  of  the  message,  the  company  will  still  be  liable  for 
a  mistake  happening  by  its  own  fault.^  Some  hold  that  this 
fault  may  be  a  defective  instrument  or  carlessness  or  unskill- 
fulness  of  its  operators,  and  not  for  mistakes  occasioned  by 
uncontrollable  causes  f  that  plaintiff,  in  order  to  recover  dam- 
ages, must  show  that  the  mistake  was  caused  by  the  fault  of 
the  company,  and  that  it  might  have  been  avoided  if  the  com- 
pany's instruments  had  been  good  ones  and  if  its  agents  had 
possessed  the  requisite  skill  and  exercised  proper  care  and  dili- 
gence in  respect  to  the  transmission  and  receipt  of  the  message 
in  question.^" 

In  Illinois  the  mere  fact  that  a  condition  is  printed  in  a  tele- 


Telegraph  Co.,  2  Am.  Electl. 
Cas.  601,  79  Me.  493,  10  A. 
493,  1  Am.  St.  Rep.  353;  Telegraph 
Co.  V.  Griswold,  37  Ohio  St.  301, 
41  Am.  Rep.  500;  Western  Union 
Tel.  Co.  V.  Crall,  2  Am.  Electl.  Cas. 
575,  38  Kan.  679,  17  P.  309,  5  Am. 
St.  Rep.  795;  Western  Un.  Tel.  Co. 
V.  Howell,  2  Am.  Electl.  Cas.  581, 
38  Kan.  685,  17  P.  313;  Brown  v. 
Cable  Co.,  4  Am.  Electl.  Cas.  774, 
111  N.  Car.  187,  16  S.  E.  179,  17 
L.  R.  A.  648,  32  Am.  Rep.  793; 
Western  Union  Tel.  Co.  v. 
Cook,  5  Am.  Electl.  Cas.  799,  61 
Fed.  Rep.  624,  9  C.  C.  A.  680,  15 
U.  S.  App.  445 ;  Western  Union  Tel. 
Co.  V.  Linn,  87  Tex.  7,  26  S.  W.  490, 
47  Am.  St.  Rep.  58;  Gillis  v.  Tele- 
graph Co.,  2  Am.  Electl.  Cas. 
841,  61  Vt.  461,  17  A.  734,  4 
L.  R.  A.  611  and  note,  15  Am.  St. 
Rep.  917.  See,  also.  Gray  on  Com- 
munications by  Tel.  51;  Thompson 
on  Elect.  235,  236. 

8.     Tyler      v.      Telegraph      Co., 


1  Am.  Electl.  Cas.  14,  60  HI. 
421,  14  Am.  Rep.  38,  74  111.  168,  24 
Am.  Rep.  279  and  note. 

9.  Tyler  v.  Telegraph  Co., 
1  Am.  Electl.  Cas.  14,  60  111. 
421,  14  Am.  Rep.  38. 

10.  Sweatland  v.  Telegraph  Co., 
27  Iowa,  433,  1  Am.  Rep.  285.  As 
to  damages  for  breach  to  transmit 
message,  see  Western  Union  Tel. 
Co.  V.  Hall,  2  Am.  Electl. 
Cas.  868,  124  U.  S.  444,  8  S.  Ct. 
577;  Hadley  v.  Baxendale,  9  Exch. 
345;  Howard  v.  Stillwell  Co.,  139 
U.  S.  199,  206,  207,  11  S.  Ct.  500; 
Sanders  v.  Stuart,  1  C.  P.  D.  326, 
328,  45  L.  Journ.,  N.  S.,  C.  P. 
682,  684;  United  States  Tel.  Co.  v. 
Gildersleve,  29  Md.  232,  251,  96 
Am.  Dec.  519;  Baldwin  v.  Telegraph 
Co.,  45  N.  Y.  744,  749,  750,  752,  6 
Am.  Rep.  165;  Tyler  v.  Telegraph 
Co.,  1  Am.  Electl.  Cas.  14,  60  HI. 
434,  14  Am.  Rep.  38;  Postal.  Tel. 
Co.  V.  Lathrop,  3  Am.  Electl.  Cas. 
630,  131  111.  575,  585,  23  N.  E.  583, 


324 


Ch.    9         LIMITING  LIABILITY   FOR  NEGLIGENCE.  §§    297,  298 

graph  blank,  does  not  charge  the  sender  of  a  message  with  notice 
thereof/^ 

§  298.  Telephone  companies. —  The  same  rule  applies  to 
telephone  companies  as  to  telegraph  companies.  Such  rules 
and  regulations  as  a  telephone  company  adopts  must  be  reason- 
able and  must  not  have  the  effect  of  relieving  the  company  of  its 
duties  and  obliagtions  which  it  owes  to  its  patrons  by  means  of 
its  public  character.^  A  telephone  company  has  the  right  to 
adopt  reasonable  rules  and  regulations ;  but  a  rule  that  it  will 
not  be  responsible  for  the  negligence  of  messenger  sent  from  its 
station,  who  must  of  necessity  be  of  its  selection  and  under  its 
control,  and  that  such  messengers  shall  be  deemed  the 
agent  of  the  patrons  at  whose  instance  they  are  sent, 
is  void  as  aaginst  public  policy,  on  the  ground  that 
a  telephone  company  cannot  limit  its  liability,  for  neg- 
ligence of  its  servants.^  Some  decisions  hold  that  a  tele- 
phone company  is  a  common  carrier.^  Whenever  such  com- 
panies are  held  to  be  common  carriers  the  court  will  apply  the 
same  rule  with  respect  to  liability  for  negligence  that  it  applies 
in  cases  of  other  common  carriers. 

7  L.  R.  A.  474,  19  Am.  St.  Rep.  55;  11.  Western    Union    Tel.    Co.    v. 

Candee    v.    Telegraph    Co.,    1    Am.  Lyon,  60  III.  App.  122,     See  "Lia- 

Electl.   Cas.   99,  34  Wis.  471,  479,  bility  of  Telegraph  Companies  for 

Telegraph   Co.,    1   Am.   Electl.   Cas.  Negligence  in  the  Transmission  and 

141,  21  Minn.  155;  Mackay  V.  Tele-  Delay    of    Messages." — 10    Va.    L. 

graph  Co.,  16  Nev.  222;   Daniel  v.  Register,  392. 

Telegraph   Co.,    1   Am.   Electl.   Cas.  1.  Central    Union  Telephone   Co. 

650,  61  Tex.  452,  48  Am.  Rep.  305;  v.  State,  2  Am.  Electl.  Cas.  27,  118 

Cannon    v.    Telegraph    Co.,    2    Am.  Ind.  194,  19  N.  E.  604,  10  Am.  St. 

Electl.   Cas.  699,   100  N,  Car.  300;  Rep.  114  and  note. 
6  S.  E.  731,  6  Am.  St.  Rep.  390;  2.  Central   Union   Telephone  Co. 

Western  Union  Tel.  Co.  v.  Wilson,  v.    Swoveland,    6   Am.    Electl.    Cas. 

4      Am.      Electl.      Cas.    664,      32  679,    14   Ind.   App.    341,   42   N.    E. 
Fla.  527,  14  S.  E.   1,  22  L.  R.  A.  3.  G^vynne  v.  Tel.  Co.,  61  S.  Car. 

434,  37  Am.  St.  Rep.  125;  Abeles  v.  83,  39  S.  E.  257,  55  L.  R.  A.   130, 

Telegraph    Co.,    37    Mo.   App.    554;  85  Am.  St.  Rep.  870;  Nebraska  Tel. 

Kinghorne  v.  Telegraph  Co.,  18  Up.  Co.  v.  State,  7  Am.  Electl.  Cas.  860, 

Can.,    Q.    B.    60,    69;    Primrose   v.  1035. 

Telegraph   Co.,   5   Am.  Electl.  Cas.  55  Neb.  627,  76  N.  W.  171,  45  L.  R. 

809,  154  U.  S.  1,  14  S.  Ct.  1098.  A.  113. 

325 


§  299        CONTRACTS  AGAINST  PUBLIC  POLICY.        Ch.  9* 

AUTICLE  IV. 
Limiting  Master^s  Liability. 

Section  299.  Limiting  Master's  Liability  to  Servant. 

300.  Limiting  Master's   Liability  to   Servant — Servant   Receiving 
Benefits  from  Association. 

§  299.  Limiting  master's  liability  to  servant. —  ISTo  man  maj 
contract  contrary  to  law,  or  contrary  to  public  policy  or  good 
morals,  and  this  is  true  of  merchants,  lawyers,  doctors,  of  buy- 
ers and  sellers,  bailors  and  bailees,  and  of  master  and  servants. 
And  the  liability  of  railroad  companies  and  other  carriers  for 
injuries  to  their  servants  caused  by  the  carelessness  of  those 
who  are  superior  in  authority  and  control  over  them,  is  placed 
chiefly  upon  consideration  of  public  policy  ;^  and  it  is  not  com- 
petent for  a  railroad  company  to  stipulate  with  its  employes  at 
the  time,  and  as  a  part  of  their  contract  of  employment,  that 
such  liability  shall  not  attach  to  it.^  A  rule  which  imposes  upon 
an  employee  to  look  after  and  be  responsible  for  his  own  safety, 
contravenes  the  law  itself,  which  fixes  the  liability  of  railroads 
for  negligence  causing  injury  or  death  to  their  employees,^  and 
is  opposed  to  public  policy.^ 

And  in  general,  a  contract  whereby  a  party  stipulates  for  his 
exemption  from  liability  for  the  consequences  of  his  own  negli- 
gence, is  against  public  policy  and  void,  and  this  is  so  independ- 

1.  Little  Miami  R.  R.  Co.  v.  pare  Western,  etc.,  R.  R.  Co.  v. 
Stevens,  x-0  Ohio,  415;  Railroad  Co.  Bishop,  50  Ga.  465;  Western,  etc., 
V.  Spangler,  44  OhioSt.  471,  8  N.  E.  R.  R.  Co.  v.  Strong,  52  Ga.  461;. 
467,  58  Am.  Rep.  833  and  note.  Hendricks  v.   Railroad  Co.,  52   Ga. 

2.  Railroad  Co.  v.  Spangler,  44  467;  Griffiths  v.  Dudley,  L.  R.  9 
Ohio  St.  471,  8  N.  E.  467;  Raesner  Q.  B.  Div.  357. 

V.  Hermann,  8  Fed.  Rep.  782;  Kan-  3.  Louisville,   etc.,    R.   R.   Co.   v. 

sas   Pac.   R.   R.   Co.   v.   Peavey,   29  Orr,  91  Ala.  548,  8  So.  360. 
Kans.    169,   44   Am.   Rep.    630    and  4.  Hissong    v.    Railroad    Co.,    91 

note;  Louisville,  etc.,  R.  R.  Co.  v.  Ala.  514,  8  So.  770;  Richmond,  etc., 

Orr,  01  Ala.  548,  8  So.  360;  Hissong  R.  R.  Co.  v.  Jones,  92  Ala.  218,  9' 

V.  Railroad  Co.,  91  Ala.  514,  8  So.  So.  276;   Railroad  Co.  v.  Spangler, 

776;    Richmond,  etc.,  R.   R.  Co.  v.  44  Ohio  St.  471,  8  N.  E.  467,  58  Am. 

Jones,  92  Ala.  218,  9  So.  276;  Com-  Rep.  833  and  note. 

326 


Ch.    9         LIMITING   LIABILITY   l-OK   NEGLIGENCE.  §§    290,  300 

entlj  of  statute.^  C\)imnon  carriers  camiot  by  contract  exempt 
themselves  from  responsibility  for  their  own  or  their  servants' 
negligence  in  the  carriage  of  goods  and  passengers  for  him ;  and 
the  principle  Avhich  vitiates  a  stipulation  for  exemption  from 
liability  for  one's  own  negligence,  is  not  confined  to  the  con- 
tracts of  carriers  as  such ;  it  applies  universally.® 

The  Georgia  doctrine  holds  that  such  contracts  are  valid  so 
far  as  they  do  not  waive  any  criminal  neglect  of  the  master  or 
his  principal  agents ;  but  when  the  contract  contravenes  public 
policy  it  will  be  void.'' 

§  300.  Limiting  master's  liability  to  servant  —  Servant  re- 
ceiving benefits  from  association. — Where  the  corporation  has 
contributed  to  the  funds  of  a  relief  association  composed  of  its 
employees,  an  agreement  by  a  member  of  the  association  that 
the  acceptance  of  benefits  from  the  relief  fund  for  injury  or 
death  shall  operate  as  a  release  of  all  claim  for  damages  against 
the  corporation  or  master,  is  not  contrary  to  public  policy,  and 
does  not  violate  the  rule  that  a  common  carrier,  or  other  master, 
cannot  make  a  valid  contract  against  his  own  negligence. 

In  cases  of  injury  through  the  master's  negligence  there  is  no 
waiver  of  any  right  of  action  that  the  person  injured  may  there- 
after be  entitled  to.  It  is  not  the  signing  of  the  contract,  but 
the  acceptance  of  benefits  after  the  accident  that  constitutes  the 
release.  The  servant  is  not  stipulating  for  the  future,  but  set- 
tling for  the  past ;  he  is  not  agreeing  to  exempt  the  master  from 
liability  for  negligence,  but  accepting  compensation  for  an  in- 
jury already  caused  thereby.^  The  substantial  feature  of  the 
contract  which  distinguishes  it  from  those  held  void  as  against 

5.  Johnson  v.  Railroad  Co.,  80  1.  Eckman  v.  Railroad  Co.,  169 
Va.  975,  11  S.  E.  829.  111.  312,  48  N.  E.  496,  38  L.  R.  A. 

6.  Cooley  on  Torts,  687;  Raesner  750;  Johnson  v.  Railroad  Co.,  163 
V.  Hermann,  10  Biss.  C.  C.  486;  Pa.  St.  127,  29  A.  854;  State  v. 
Railway  Co.  v.  Spangler,  44  Ohio  Railroad  Co.,  36  Fed.  Rep.  655; 
St.  471,  8  N.  E.  467,  58  Am.  Rep.  Owens  v.  Railroad  Co.,  35  Fed. 
833  and  note;  Johnson  v.  Railroad  Rep.  715,  1  L.  R.  A.  75  and  note; 
Co.,  86  Va.  975,  11  S.  E.  829.  Chicago,  etc.   Railroad  Co.  v.   Bell, 

7.  Western,  etc.  R.  R.  Co.  v.  44  Neb.  44,  62  N.  W.  314;  Fuller  v. 
Bishop,   50  Ga.  465.  Relief  Asso.,  67  Md.  433,  10  A.  237; 

32Y 


§  300       CONTRACTS  AGAINST  PUBLIC  POLICY.       Cll.  9 

public  policy  is  that  the  servant  retains  whatever  right  of  action 
he  may  have  until  after  knowledge  of  all  the  facts,  and  an  op- 
portunity to  make  his  choice  between  the  sure  benefit  of  the  as- 
sociation or  the  chances  of  litigation.  Having  accepted  the 
former  he  cannot  justly  ask  the  latter  in  addition.^ 

The  acceptance  of  such  relief  fund  by  the  servant  operates  as 
a  release  of  such  servant's  claim  against  the  master  for  damages 
because  of  injury  under  the  following  construction  of  such  con- 
tract: 1.  Such  contract  of  a  servant  does  not  lack  considera- 
tion to  support  it.  2.  The  promise  made  by  the  servant  or  em- 
ployee to  the  relief  association  of  the  master  is  available  to  the 
latter  as  a  cause  of  action  or  defense.  3.  Such  contract  is  not 
contrary  to  public  policy.  4.  The  effect  of  such  contract  is  not 
to  make  the  master  exonerate  himself  by  contract  from  lia- 
bility for  the  negligence  of  himself  or  servants.  5.  The  em- 
ployee does  not  waive  his  right  of  action  against  the  master,  in 
case  he  should  be  injured  by  the  master's  negligence,  by  the 
execution  of  the  contract.  6.  It  is  not  the  execution  of  the  con- 
tract that  estops  the  injured  servant,  but  his  acceptance  of  pay- 
ment from  the  relief  association  on  account  of  the  injury  after 
his  cause  of  action  against  the  master  on  account  thereof  arises.' 
And  if  the  relief  association  has  no  money  to  pay  the  injured 
servant,  then  he  may  sue  the  company  and  recover,  notwith- 
standing he  has  accepted  benefits  as  a  member  of  such  associa- 
tion organized  by  the  company,  under  an  agreement  that  he 
thereby  relinquishes  his  right  of  action.'* 

Eingle  v.  Railroad  Co.,  164  Pa.  St.  3.  Chicago,   etc.   Railroad  Co.  v. 

529,  44  Am.  St.  Rep.  628  and  note;  Bell,   44   Keb.    44,   52   N.   W.   314 j 

Kinney  v.  Railroad  Co.,  35  W.  Va.  Martin    v.    Railroad    Co.,    41    Fed. 

385;    14  S.  E.  8,   15  L.  R.  A.   142  Rep.   125.     See,  also,  Otis  v.  Rail- 

and   note;    Spetz   v.   Railroad   Co.,  road  Co.,    71    Fed.   Rep.    136;    Cle- 

75  Md.  308,  23  A.  307.  ments  v.  Railroad  Co.  (1894),  2  Q. 

2.  Johnson  v.   Railroad  Co.,   163  B.  482;  Vickers  v.  Railroad  Co.,  71 

Pa.    St.    127,   29  A.   854;    Lease   v.  Fed.  Rep.   139;   Shaver  v.  Railroad 

Railroad  Co.,   10  Ind.  App.  47,  37  Co.,  71  Fed.  Rep.  931. 

N.  E.  423;   O'Neil  v.  Iron  Co.,  63  4.  Chicago,    etc.    R.    R.    Co.    v. 

Mich.  690,  30  N.  W.  688.  Miller,  76  Fed.  Rep.  439,  22  C.  C. 

A.  264,  40  U.  S.  App.  448. 


328 


CHAPTER  X. 

Obligations  of  Quasi-Public   Corporations. 


AETICLE  I. 

Disabling  Contracts  of  Corporations  Owing  a  Duty  to 

THE  Public. 

Section  301.  Private  Contract  of  Quasi-Public  Corporations. 

302.  Locating  Right  of  Way  and  Stations  of  Railroads. 

303.  Use  of  Franchise. 

§  301.  Private  contracts  of  quasi  corporations. —  Tlie  gen- 
eral rule  that  contracts  in  partial  restraint  of  trade  are  not  in- 
valid, does  not  apply  to  corporations  in  a  public  business,  in 
which  the  public  are  interested.  Such  contracts  cannot  be  al- 
lowed. Any  private  contract  by  them  which  is  injurious  or  pre- 
judicial to  the  public  interest  is  void  on  the  ground  of  public 
policy.^  And  so  a  contract  by  which  a  company  renders  itself 
incapable  of  performing  its  duties  to  the  public  or  attempts  to 
absolve  itself  from  its  duties,  without  the  consent  of  the  State, 
violates  its  charter  and  is  forbidden  by  public  policy.^  And  so 
a  contract  which  obliges  one  of  the  parties  to  do  an  act  in  viola- 
tion of  law,  or  restricts  the  free  exercise  of  discretion  vested  by 
law  in  a  public  or  municipal  officer  in  reference  to  a  trust  re- 
posed in  him,  or  which  contemplates  such  violation  of  law  or 
discharge  of  the  free  exercise  of  a  public  duty,  is  a  nullity.' 

1.  Burney  V.  Ludeling,  47  La.  Ann.  U.  S.  71,  83;  Ashbury  Railway,  etc. 
73,   16  So.  507;  Chicago  Gas  Light       Co.  v.  Riche,  L.  R.  7  H.  L.  653. 

Co.  V.  Coke  Co.,  121  111.  530,  13  N.  3.  Mayor   v.    Bowman,    39   Miss. 

E.   169;   Hays  v.   Railroad  Co.,  61  671.     See,  also,  Jerret  v.  Bartlett, 

111.   422;    Thomas  v.   Railroad   Co.,  21    Vt.    184;    Wooten   v.   Miller,   7 

101  U.  S.  71,  83.  Sm.  &  M.    (Miss.)    385. 

2.  Thomas   v.   Railroad   Co.,    101 

329 


§§  301,  30'2    CONTEACTS  AGAINST  PUBLIC  POLICY.    Cll.  10 

So,  a  board  of  education  has  no  right  to  stipulate  in  a  con- 
tract for  improveonent  that  none  but  union  labor  shall  be  em- 
ployed by  the  contractor.'*  Such  a  stipulation  is  an  infringe- 
ment of  the  constitutional  rights  of  citizens.  Even  the  State, 
through  its  legislature  could  not  enact  such  a  provision.^ 


§  302.    Locating  right  of  way  and  stations  of  railroads. — 

It  is  generally  held  that  a  railway  company  cannot  bind  itself 
with  an  individual  to  locate  and  maintain  stations  at  particu- 
lar points  or  not  to  locate  and  maintain  them  at  other  points. 
The  company  must  be  left  free  to  establish  and  reestablish  when- 
ever the  public  welfare  or  wants  of  the  public  may  require.  The 
power  to  locate  stations  is,  from  its  nature,  a  continuing  one.^ 
So  a  contract  materially  limiting  a  railroad's  power  to  locate 
and  relocate  its  depots,  is  against  public  policy  and,  therefore, 
void.^ 

So  a  contract  in  which  an  officer  or  other  person  supposed  to 
be  influential  with  a  railway  company,  for  a  consideration  prom- 
ised him,  agrees  to  secure  the  location  of  station,  depot  or  rail- 
way at  a  particular  place,  is  void.^  Another  class  of  cases,  which 
restrict  the  doctrine  of  the  general  rule  holds,  that  where  an 


4.  Adams  v.  Brennan,  177  111. 
194,  52  N.  E.  314,  60  Am.  St.  Rep. 
222,  42  L.  R.  A.  718. 

5.  People  V.  Live  Stock  Exchange, 
170  111.  556,  48  N.  E.  1062,  30  L. 
R.  A.  373,  62  Am.  St.  Rep.  404; 
Holden  v.  Alton,  179  111.  318,  53 
N.  E.  556. 

1.  Mobile,  etc.  R.  R.  Co.  v.  Peo- 
ple, 132  111.  559,  24  N.  E.  645,  22 
Am.   St.   Rep.    556. 

2.  Fuller  v.  Dame,  18  Pick. 
(Mass.)  472;  Burney  v.  Ludeling, 
47  La.  Ann.  73,  16  So.  507;  St. 
Joseph,  etc.  R.  R.  Co.  v.  Ryan,  11 
Kan.  602,  15  Am.  Rep.  557;  Pacific 
R.  R.  Co.  V.  Seeley,  45  Mo.  212, 
100  Am.  Dec.  369;  Currie  v.  Rail- 
road   Co.,    61    Miss.    725;    Florida, 


etc.  R.  R.  Co.  V.  State,  31  Fla.  482, 
13  So.  103,  20  L.  R.  A.  419,  34  Am. 
St.  Rep.  30;  Woodstock  Iron  Co. 
V.  Railroad  Co.,  129  U.  S.  642,  9 
S.  Ct.  402;  Williamson  v.  Railroad 
Co.,  53  Iowa,  126,  4  N.  870,  36  Am. 
Rep.  206  and  note;  Marsh  v.  Rail- 
road Co.,  64  111.  414,  16  Am.  Rep. 
564;  Holladay  v.  Patterson,  5  Oreg. 
182;  Linder  v.  Carpenter,  62  111. 
309;  St.  Louis,  etc.  R.  R.  Co.  v. 
Mathews,  71  111.  59^,  104  111.  257; 
Bester  v.  Wathen,  6D  111.  138;  Peo- 
ple V.  Railroad  Co.,  130  111.  175, 
22  N.  E.  857. 

3.  Fuller  v.  Dame,  18  Pick. 
(Mass.)  472;  Bester  v.  Wa- 
then, 60  111.  138;  Linder  v.  Carpen- 
ter, 62  111.   309. 


330 


Ch.   10 


QUASI-PUBLIC    CORPORATIONS. 


§    302 


agreement  has  been  made,  between  an  individual  and  railway 
corporation,  for  tbe  location  of  a  station  or  depot  at  a  particu- 
lar place,  in  consideration  of  a  donation  of  money  or  property 
to  the  corporation,  without  any  restriction  or  prohibition  against 
any  other  location,  it  is  valid/  And,  hence,  an  agreement  to 
pay  a  railway  company  a  stipulated  sum,  in  consideration  that 
it  would  locate  its  route  at  a  particular  place,  is  valid,  and 
not  against  public  policy.^  So  a  conditional  subscription  of 
stock  is  valid/  And  so  a  voluntary  grant  to  a  railroad,  on  con- 
dition that  it  would  locate  its  route  and  establish  a  depot  at  a 
certain  place,  is  not  against  public  policy/  According  to  these 
cases  where  there  is  no  restriction  or  prohibition  against  any 
other  location,  such  contracts  are  not  void  as  against  public 
policy/  All  the  cases  agree  that  those  contracts  which  stipulate 
for  location  of  stations  or  depots  at  particular  places,  and  which 
prohibit  the  location  of  others  within  prescribed  limits,  are 
void,^  because  railroad  companies  can  make  no  contract  which 
shall  prohibit  it  from  serving  the  public  as  the  future  demands 
of  business  or  concentration  of  population  may  require/" 


4.  Louisville,  etc.  R.  R.  Co.  v. 
Sumner,  106  Ind.  55,  5  N.  E.  404, 
55  Am.  Rep.  719. 

5.  Cumberland  R.  R.  Co.  v.  Baab, 

9  Watts  (Pa.),  458,  36  Am.  Dec. 
132;  First  Nat.  Bank  v.  Hendric, 
49  Iowa,  402,  31  Am.  Rep.  153; 
Swartout  v.  Railroad  Co.,  24  Mich. 
389;  Harris  v.  Roberts,  12  Nebr. 
631,  21  N.  89,  41  Am.  Rep.  779; 
International  R.  R.  Co.  v.  Dawson, 
62  Tex.  260. 

6.  New  Albany,  etc.  R.  R.  Co.  v. 
McCormick,  10  Ind.  499,  71  Am. 
Dec.   337;    Jewett  v.  Railroad  Co., 

10  Ind.  539. 

7.  McClure  v.  Railroad  Co.,  9 
Kans.  373.  See,  also,  Watterson 
V.   Railroad    Co.,   74   Pa.    St.    208; 


Galveston,  etc.  R.  R.  Co.  v.  Pfeuffer, 
56  Tex.   66. 

8.  Louisville,  etc.  R.  R.  Co.  v. 
Sumner,  100  Ind.  55,  5  N.  E.  404, 
55  Am.  Rep.  719. 

'  9.  Williamson  v.  Railroad  Co., 
53  Iowa,  126,  4  N.  870,  36  Am. 
Rep.  206  and  note;  St.  Louis,  etc. 
R.  R.  Co.  V.  Mathews,  104  111.  257, 
22  Am.  Rep.  122,  71  111.  592;  St. 
Joseph,  etc.  R.  R.  Co.  v.  Ryan,  11 
Kan.  602, 15  Am.  Rep.  357.  See,  also. 
Fuller  V.  Dame,  18  Pick.  (Mass.) 
472;  Bester  v.  Wathen,  60  111.  138. 

10.  Louisville,  etc.  R.  R.  Co.  v. 
Sumner,  106  Ind.  55,  5  N.  E.  404, 
55  Am.  Rep.  719;  Williamson  r. 
Railroad  Co.,  53  Iowa,  126,  4  N. 
870,  30  Am.  Rep.  206  and  note. 


331 


§    303  CONTEACTS   AGAINST   PUBLIC   POLICY.  Ch.    10 

§  303.  Use  of  franchises. —  Where  a  corporation  like  a  rail- 
road company  has  granted  to  it  by  charter  a  franchise  intended 
in  large  measure  to  be  exercised  for  the  public  good,  the  due 
performance  of  those  functions  being  the  consideration  of  the 
public  grant;  and  any  contract  which  disables  the  corporation 
from  performing  those  functions,  which  undertakes  without  the 
consent  of  the  State  to  transfer  to  others  the  rights  and  powers 
conferred  by  the  charter  and  to  relieve  the  grantee  of  the  bur- 
den which  it  imposes,  is  a  violation  of  the  contract  with  the 
State  and  is  void  as  against  public  policy.^ 

A  contract  of  a  carrier,  whether  an  individual  or  a  corpora- 
tion, not  to  cary  passengers  or  goods  over  a  particular  route  may 
be  reasonable  and  valid.^  But  a  contract  by  which  a  corpora- 
tion, chartered  to  perform  the  duties  of  a  common  carrier,  or 
any  other  duties  to  the  public,  agrees  that  it  will  not  perform 
those  duties  at  all,  anywhere,  for  ninety-nine  years,  is  clearly 
unreasonable  and  void.^  When  the  corporation  abandons  its 
duty  to  the  public  in  making  contracts,  such  contracts  are  void.* 

The  supplying  of  illuminating  gas  is  a  business  of  a  public 
nature  to  meet  a  public  necessity.  It  is  not  a  business  like  that 
of  an  ordinary  corporation  engaged  in  the  manufacture  of 
articles  that  may  be  furnished  by  individual  effort,  and  are 
controlled  in  making  contracts  by  their  charters.^ 

1.  Thomas  v.  Railroad  Co.,  101  4.  Central  Trans.  Co.  v.  Car  Co., 
U.  S.  71,  83;   Pickard  v.  Car  Co.,        139  U.  S.  24,   11  S.  Ct.  478. 

117  U.  S.  34,  6  S.  Ct.  635;  York,  5.  New  Orleans  Gas  Co.  v.  Louis- 

etc.  R.  R.  Co.  V.  Winans,  17  How.  iana  Light  Co.,  115  U.  S.  650,  6  S. 

(U.  S.)    30,  39.  Ct.  252;  Louisville  Gas  Co.  v.  Cit- 

2.  Peirce  v.  Fuller,  8  Mass.  223;  izens'  Gas  Co.,  115  U.  S.  683,  6  S. 
Palmer  v.  Stebbiiis,  3  Pick.  (Mass.)  Ct.  265;  Shepard  v.  Gas  Light  Co., 
188,  15  Am.  Dec.  204;  Leslie  v.  6  Wis.  539,  70  Am.  Dec.  479  and 
Lorillard,  110  N.  Y.  519,  18  N.  E.  note;  Chicago  Gas  Light  and  Coke 
363,  1  L.  R.  A.  456  and  note.  Co.  v.  Coke  Co.,  121  111.  530,  13  N. 

3.  Oregon  Steam  Nav.  Co.  v.  E.  169,  2  Am.  St.  Rep.  124;  St. 
Winsor,  20  Wall.  (U.  S.)  64;  Louis  v.  Gas  Light  Co.,  70  Mo.  69. 
Gibbs  V.  Gas  Co.,  130  U.  S.  408,  410,  See,  also.  State  v.  Railroad  Co., 
9  S.  Ct.  553.  29    Conn.    538;    Peters    v.    Ryland, 

20  Pa.  St.  497,  59  Am.  Dec.  746. 


332 


Ch.     10  QUASI-PUBLIC    COHPORATIONS.  §    304 

AJRTICLE  11. 
Discriminations. 

Section  304.  Suppressing  Competition. 

305.  Combination  of  Quasi-Public  Corporations. 

306.  Discrimination  by  Carriers. 

307.  Telephone  and  Telegraph  Companies. 

308.  Exclusive  Privileges. 

§  304.  Suppressing  competition. —  While  it  is  justly  urged 
that  those  rules  which  say  that  a  given  contract  is  against  public 
policy,  should  not  be  arbitrarily  extended  so  as  to  interfere  with 
the  freedom  of  contract/  yet  in  the  instance  of  business  of  such 
character  that  it  presumably  cannot  be  restrained  to  any  extent 
whatever  without  prejudice  to  the  public  interest,  courts  de- 
cline to  enforce  or  sustain  contracts  imposing  restraint,  however 
partial,  because  in  contravention  of  public  policy.^  A  railway 
company  cannot  lease  or  buy  a  competing  line  in  order  to  sup- 
press competition.^  Any  combination  or  agreement,  the  object 
of  which  is  to  destroy  or  interfere  with  free  competition  in  any 
line  of  business  is  void,  whether  or  not  in  the  particular  instance 
it  has  its  desired  effect.*  When  the  provisions  of  agreements  in 
restraint  of  competition  tend  beyond  measures  for  self-protec- 
tion and  threaten  the  public  good  in  a  distinctly  appreciable 
manner,  they  should  not  be  sustained.  The  apprehension  of 
danger  to  the  public  interests,  however,  should  rest  on  evident 
grounds,  and  courts  should  refrain  from  the  exercise  of  their 
equitable  powers  in  interfering  with  and  restraining  the  con- 

1.  Printing   and   Registering  Co.  Telegraph  Co.,  65  Ga.  160,  38  Am. 
V.  Sampson,  L.  R.  19  Eq.  Cas.  462.  Rep.  781   and  note. 

2.  West  Virginia  Trans.  Co.  v.  3.  Thomas  v.  Railroad  Co.,  101 
Pipe  Line  Co.,  22  W.  Va.  600,  46  U.  S.  71;  Gulf,  etc.  R.  R.  Co.  v. 
Am.  Rep.  527;  Chicago  Gas  Light  Morris,  67  Tex.  692,  4  S.  W.  156. 
and  Coke  Co.  v.  Coke  Co.,  121  HI.  4.  Anderson  v.  Jett,  89  Ky.  375, 
530,  13  N.  E.  169,  2  Am.  St.  Rep.  12  S.  W.  670,  6  L.  R.  A.  390. 
124;    Western    Union    Tel.    Co.    v. 

333 


§§  304,  305    CONTEACTS  AGAINST  PUBLIC  POLICY.    Ch.  10 

duct  of  the  affairs  of  individuals  or  of  corporations,  unless  their 
conduct,  in  some  tangible  form,  threatens  the  welfare  of  the 
public.^ 

To  the  extent  that  the  contract  prevents  the  vendor  from  car- 
rying on  the  particular  business,  it  deprives  the  community  of 
any  benefit  it  might  derive  from  his  entering  the  competition. 
But  the  business  is  open  to  all  others  and  there  is  little  danger 
that  the  public  will  suffer  harm  from  lack  of  persons  to  engage 
in  a  profitable  industry.  Such  contracts  do  not  create  monopo- 
lies.    They  confer  no  special  or  exclusive  privilege.® 

If  the  restriction  is  only  commensurable  with  the  fair  pro- 
tection of  the  business  sold,  the  contract  is  reasonable,  valid  and 
enforceable.  It  is  only  where  the  restriction  can  be  of  no  avail 
to  the  vendee  and  unnecessarily  hampers  the  vendor  that  it  be- 
comes oppressive  and  void.'^ 

All  contracts,  in  which  the  public  are  interested,  which  tend 
to  prevent  competition,  whenever  a  statute  or  known  rule  of  law 
requires  competition,  are  void.^  A  party  has  a  right  to  solicit 
business,  and  may,  even  maliciously  solicit  customers  from  an- 
other so  long  as  he  does  not  induce  the  customers  to  violate  their 
contracts  with  another.® 

§  305.  Combinations  of  quasi-public  corporations. — Com- 
binations among  those  engaged  in  business  impressed  with  a 

5.  Diamond  MatcE  Co.  v.  Roeber,  Co.,  143  N.  Y.  430,  38  N.  E.  461, 
106  N.  Y.  473,  13  N.  E.  419,  60  Am.       26  L.  R.  A.  544  and  note. 

Rep.   464;    Leslie  v.  Lorillard,   110  8.  Chicago  v.  Rumoff,  45  111.  90, 

N.  Y.  519,  18  N.  E.  363,  1  L.  R.  A.  92  Am.  Dec.   196;   People  v.  Trust 

456  and  note.  Co.,   130   111.   268,  22   N.   E.  798,  8 

6.  Diamond  Match  Co.  v.  Roeber,  L.  R.  A.  497,  and  note;  17  Am.  St. 
106  N.  Y.  473,  13  N.  E.  419,  60  Am.  Rep.  319;  Foss  v.  Cummings,  149 
Rep.  464.  111.  353,  36  N.  E.  553;  Fishburn  v. 

7.  Fowle  V.  Park,  131  U.  S.  88,  Chicago,  171  111.  338,  49  N.  E.  532, 
9  S.  Ct.  658;  Ellerman  v.  Stock  39  L.  R.  A.  482,  63  Am.  St.  Rep. 
Yards  Co.,  49  N.  J.  Eq.  217,  23  A.  236. 

287;    Long   v.   Towl,    42    Mo.    545;  9.  West   Virginia    Trans.    Co.    v. 

Tode  V.  Gross,   127   N.  Y.   480,  28  Standard  Oil  Co.,  50  W.  Va.  611, 

N.  E.  469,  13  L.  R.  A.  652  and  note;  40  S.  E.  472,  56  L.  R.  A.  804,  88 

24Am.  St.  Rep.  475;  Oakes  v.  Water  Am.  St.  Rep.  895. 

334 


Ch.     10  QUASI-PUBLIC    CORPORATIONS.  §§    305,  306 

public  or  qnasi--p\\b]ic.  character,  which  are  manifestly  preju- 
dicial to  the  public  interest  cannot  be  upheld.^ 

A  corporation  cannot  disable  itself  by  contract  from  the  per- 
formance of  public  duties  which  it  has  undertaken,  and  thereby 
make  public  accommodation  or  convenience  subservient  to  its 
private  interests.^  And  a  combination  between  two  or  more 
railroad  companies  owning-  competing;  lines,  by  which  one  line 
is  to  be  discontinued  or  leased  to  the  other,  is  void  as  against 
public  policy.'  And  a  statute  may  prohibit  mergers  of  compet- 
ing 5^/asi-public  corporations.  So  an  ordinance  of  a  city  requir- 
ing the  giving  of  transfers,  where  one  street  railway  controls  an- 
other, either  by  owning  or  leasing,  or  operating  it,  to  passengers 
riding  on  either  line,  is  valid.* 

§  306.  Discrimination  by  carriers. —  Persons  having  a  pub- 
lic duty  to  perform  are  bound  to  exercise  such  office  for  the 
equal  benefit  of  all,  and,  therefore,  to  permit  a  common  carrier 
to  charge  various  prices  according  to  the  person  with  whom  he 
deals  for  the  same  services,  is  to  violate  his  duty  to  the  public. 
If  he  exacts  different  rates  for  the  carriage  of  goods  of 
the  same  kind  between  the  same  point,  he  violates  the 
principles  of  public  policy.^     In  the  United  States,  the  stat- 

1.  Woodstock  Iron  Co.  v.  Exten-  4.  Cliieago  Union  Traction  Co.  v. 
sion  Co.,  129  U.  S.  643,  9  S.  Ct.  Chicago,  199  111.  579,  65  X.  E.  470; 
402;  Trist  v.  Child,  21  Wall.  (U.  Compare  San  Diego  Gas  Co.  v. 
S.)  441;  Irwin  v.  Williar,  110  U.  Frame,  137  Cal.  441,  70  P.  295; 
S.  499,  4  S.  Ct.  160;  Arnat  v.  Coal  Atchison,  etc.  E.  R.  Co.  v.  Cockran, 
Co.,  68  N.  Y.  558,  23  Am.  Rep.  43  Kan.  225,  23  P.  151,  7  L.  R.  A. 
190;    Central   Salt   Co.   v.   Guthrie,  414,  19  Am.  St.  Rep.  129. 

35  Ohio  St.  666;   Woodruff  v.  Ber-  5.  Messenger  v.  Railroad  Co.,  36 

ry,  40  Ark.  251,  261;   Craft  v.  Mc-  N.  J.  L.  407,  13  Am.  Rep.  457;  In- 

Conoughy,  79  111.  346,  22  Am.  Rep.  dianapolis.  etc.  R.  R.  Co.  v.  Ervin, 

171;     Hooker     v.     Vandewater,     4  118111.250,  8  N.  E.  862,  59  Am.  Rep. 

Denio    (N.   Y.),   349,   47   Am.   Dec.  369;   United  States  Express  Co.  v. 

258;  Stanton  V.  Allen,  5  Denio  (N.  Backman,    28    Ohio    St.    144;    New 

Y.),  434,  49  Am.  Dec.  282.  England    Express    Co.    v.    Railroad 

2.  Gibbs  V.  Gas  Co.,  130  U.  S.  Co.,  57  Me.  188,  2  Am.  Rep.  31; 
396,  9  S.  Ct.  553.  McDuffee  v.  Railroad  Co.,  52  N.  H. 

3.  Thomas  v.  Railroad  Co..  101  430,  13  Am.  Rep.  72;  Sanford  v. 
U.  S.  71,  83.  Railroad   Co.,   24   Pa.    St.    378,   64 

335 


§§    306-308  CONTEACTS    AGAINST    PUBLIC    POLICY.  Ch.    10' 

"utes  prohibiting  discrimination  are  merely  declaratory  of  the 
common  law.^ 

§  307.  Telegraph  and  telephone  companies. —  The  term 
"  telegraph  "  includes  any  apparatus  or  adjustment  of  instru- 
ments for  transmitting  messages  or  other  communications  by 
means  of  electric  currents  and  signals,  and  hence,  it  includes 
the  telephone.^  The  telegraph  and  telephone  both  being  in- 
struments in  constant  use  in  conducting  the  commerce,  and  the 
affairs,  both  public  and  private,  of  the  country,  their  operation 
therefore,  in  doing  a  general  business,  is  a  public  employment, 
and  the  instruments  and  appliances  used  are  properly  devoted  to 
public  use,  and  in  which  the  public  have  an  interest.  And  such 
being  the  case,  the  owner  of  the  property  thus  devoted  to  public 
use,  must  submit  to  have  that  use  and  employment  regarded 
by  public  authority  for  the  common  good.^  Such  companies 
caimot  refuse  to  perform  impartially  the  functions  that  they 
have  assumed  to  discharge,  no  more  than  a  railway  company,  as 
a  common  carrier,  can  rightfully  refuse  to  perform  its  duty  to 
the  public ;  they  have  no  power  to  discriminate,  and  while  offer- 
ing to  serve  some,  refuse  to  serve  others ;  they  must  serve  all 
alike,  upon  compliance  with  their  reasonable  rules  and  regula- 
tions.' 

§  308.  Exclusive  privileges. —  Contracts  made  by  corpora- 
tions owing  a  duty  to  the  public  which  foster  monopolies  are 

Am.  Dec.  667;   Audexried  v.  Rail-  1.  Attorney    Gen.    v.    Telephone 

road  Co.,  68  Pa.  St.  370,  8  Am.  Rep.  Co.,  6  Q.  B.  Div.  244. 

195;    Scofleld   v.   Railroad   Co.,   43  2.  Munn    v.    Illinois,    94    U.    S. 

Ohio  St.  571,  3  N.  E.  917,  54  Am.  113;  Hockett  v.  State,  105  Ind.  250, 

Rep.  846  and  note.  5  N.  E.  202,  55  Am.  Rep.  201. 

6.  Sinking  Fund  Cases,  99  U.  S.  3.  Chesapeake,  etc.  Co.  v.  Teleg. 

719;  Messenger  v.  Railroad  Co.,  36  Co.,  66  Md.  399,  7  A.  809,  59  Am. 

N.    J.    L.    407,    13   Am.    Rep.    457;  Rep.  167  and  note.     See,  also,  Shep- 

Hayes  v.  Railroad  Co.,  12  Fed.  Rep.  hard  v.  Gas  Light  Co.,  6  Wis.  526; 

309;    Vincent  v.    Railroad   Co.,    49  Gas  Light  Co.  v.  Colliday,  25  Md. 

111.  33;  McCay  v.  Railroad  Co.,  13  1;  People  v.  Gas  Light  Co.,  45  Barb. 

Fed.  Rep.  3;  Chicago,  etc.  R.  R.  Co.  (N.  Y.)   136. 
V.  People,  56  111.  365,  8  Am.  Rep. 
690. 

336 


Ch.   10 


QUASI-PUBLIC    CORPORATIONS. 


§    808 


void,  such  as  giving  exclusive  privileges.  Such  contracts  made 
and  entered  into,  cripple  and  prevent  competition,  and  are  not 
favored  by  the  lav? ;  they  are  against  public  policy,  because  they 
tend  to  create  monopolies,  and  are  in  general  restraint  of  trade.^ 

Hence,  contracts  between  a  railroad  and  a  telegraph  com- 
pany, vesting  in  the  latter  exclusive  right  to  use  or  occupy  the 
right  of  way  of  the  former,  for  the  erection  of  telegraph  poles 
and  other  purposes  in  connection  with  their  business  of  sending 
messages  by  telegraph,  are  void  as  in  general  restraint  of  trade, 
and  tending  to  create  a  monopoly,  thus  being  against  public 
policy.^  But  it  has  been  held  in  Illinois  that  a  second  telegraph 
company  could  not  use  the  telegraph  poles  of  the  first  company 
though  given  that  privilege  by  the  railroad  company.^ 

A  ferry  company  may  limit  its  operations  to  a  single  place, 
and  limit  it  to  one  railroad  company,  so  long  as  the  ferry  com- 
pany furnishes  all  the  facilities  that  the  public  interest  requires, 
as  this  is  no  general  restraint  of  trade/ 


1.  Oregon  Steam  Nav.  Co.  v. 
Winsor,  20  Wall.  (U.  S.)  66,  68; 
Western  Union  Tel.  Co.  v.  Tele- 
graph Co.,  5  Nev.  103. 

2.  Western  Union  Tel.  Co.  v. 
Telegraph  Co.,  65  Ga.  160,  38  Am. 
Rep.  781  and  note. 


3.  Western  Union  Tel.  Co.  v. 
Railroad  Co.,  86  HI.  246,  29  Am. 
Rep.  28. 

4.  Wiggins  Ferry  Co.  v.  Railroad 
Co.,  73  Mo.  389,  39  Am.  Rep.  519. 


337 


CHAPTER  XL 

Restraint  of  Trade. 


AETICLE  I. 

CoNTBACTs  IN  Restraint  of  Trade. 

Section  309.  Contracts  in  Restraint  of  Trade. 

310.  Unreasonable  Restraint. 

311.  English  Doctrine  as   to   Limitations   of  Time   and    Space — 

Reasonableness. 

312.  American  Doctrine  as  to  Limitation  of  Time  and  Space. 

313.  Test  of  Reasonableness. 

314.  The  Latest  Statement  of  the  Test  of  Reasonableness. 

315.  Injuring  the  Trade  of  Another. 

§  309.  Contracts  in  restraint  of  trade. —  As  preliminary  to 
the  discussion  of  this  subject,  it  may  be  well  to  speak  of  the 
modern  combination,  and  industrial  and  largely  commercial 
enterprise.  This  modern  combination  is  created  solely  to  con- 
trol trade  and  commerce  in  certain  articles  of  production  and 
substitute  a  more  or  less  perfect  monopoly  in  the  place  of  a  more 
or  less  free  competition.  Combination  as  an  economic  agent  is 
taking  the  place  of  competition.  The  producers  are  combining; 
transportation  companies  are  merging;  laborers  and  employers 
have  distinct  unions,  and  competition  seems  to  be  losing  its  place 
in  commerce.  The  principle  of  uniting  is  carried  still  further 
and  there  are  combinations  of  combinations.  And  the  great 
combinations  of  to-day  are  the  creation  of  competing  producers 
who  were  themselves  combinations  of  still  other  producers.  The 
individualistic  civilization  which  has  made  the  Eepublic  great 
is  losing  its  place,  and  individuals  now  dare  not  take  the  initia- 
tive and  rely  upon  themselves  in  the  commercial  world.  The 
economic  virtue  of  our  industrial  system  which  has  made  the 

338 


Cb.    11  llESTRAINT    OF   TKADE.  §    309 

nation  great  is  being  supplanted  bj  combinations  and  monopoly. 
Tbese  combinations  are  rapidly  driving  ont  of  business  tbe 
small  trader  and  tbe  small  producer.  These  combinations  are 
changing  the  commercial  methods  of  our  people  and  having 
great  effects  upon  our  commercial  laws.  And  a  jurisprudence 
of  commercial  restriction  must  take  the  place  of  jurisprudence 
of  commercial  competition.  But  treating  the  subject  in  its  or- 
dinary conception,  irrespective  of  modern  combinations,  the 
leading  decision  of  Mitchel  v.  Reynolds,^  is  the  foundation  of 
the  rule  in  relation  to  tlie  invalidity  of  contracts  in  restraint  of 
trade ;  but  as  it  was  made  under  a  condition  of  things,  and  a 
state  of  society,  different  from  those  which  now  prevail,  the  rule 
laid  down  is  not  regarded  as  inflexible,  and  has  been  consider- 
ably modified.  Public  welfare  is  first  considered,  and  if  it  be 
not  involved,  and  the  restraint  upon  one  party  is  not  greater 
than  protection  to  the  other  party  requires,  the  contract  may  be 
sustained.  The  question  is  whether,  under  the  particular  cir- 
cumstances of  the  case  and  the  nature  of  the  particular  contract 
involved  in  it,  the  contract  is  or  is  not  unreasonable.^  Cases 
must  be  judged  according  to  their  circumstances,  and  can  only 
be  rightly  judged  when  the  reason  and  grounds  of  the  rule  are 
carefully  considered. 

There  are  two  principal  grounds  on  which  the  doctrine  is 
founded  that  a  contract  in  restrain  of  trade  is  void  as  against 
public  policy :  1.  The  inju^ry  to  the  public  by  being  deprived  of 
the  restricted  party's  industry.  2.  The  injury  to  the  party  him- 
self by  being  precluded  from  pursuing  his  occupation,  and  thus 
being  prevented  from  supporting  himself  and  his  family.  It  is 
evident  that  both  these  evils  occur  when  the  contract  is  general, 
not  to  pursue  one's  trade  at  all,  or  not  to  pursue  it  in  the  entire 
realm  or  country.  The  country  suffers  the  loss  in  both  cases ; 
and  the  party  is  deprived  of  his  occupation,  or  is  obliged  to  ex- 
patriate himself  in  order  to  follow  it.^     And  a  contract  in  re- 

1.  1  P.  Wm.  181;  Dier's  Case,  D.  351;  Leather  Cloth  Co.  v.  Lor- 
Year  Beck.  2  Hen.  V,  fol.  5,  p.  26.        sent,  9  Eq.  345. 

2.  Rousillon  v.  Rousillon,  14  Ch.  3.    Oregon    Steam    Nav.    Co.    v. 

Winsor,  20  Wall.    (U.   S.)    64,  68; 

339 


§§  309,  310    CONTEACTS  AGAINST  PUBLIC  POLICY,    Ch.  11 

straint  of  trade  must  be  based  on  a  sufficient  consideration/  It 
may  be  unlimited  as  to  time,  but  limited  as  to  space ;  it  may  be 
unlimited  as  to  space,  but  limited  as  to  time ;  or  it  may  be  un- 
limited both  as  to  time  and  space. 

§  310.  Unreasonable  restraint. —  In  Alger  v.  Thacber,^  it  is 
laid  down  that  the  unreasonableness  of  contracts  in  restrain  of 
trade  and  business  is  very  apparent  from  several  obvious  con- 
siderations. Among  these  are  such  contracts  which  injure  the 
parties  making  them,  because  they  diminish  their  means  of  pro- 
curing livelihood  and  a  competency  for  their  families ;  they 
tempt  improvident  persons,  for  the  sake  of  present  gain,  to  de- 
prive themselves  of  the  power  to  make  future  acquisitions,  and 
they  expose  such  persons  to  imposition  and  oppression ;  they 
tend  to  deprive  the  public  of  the  services  of  men  in  the  employ- 
ments and  capacities  in  which  they  may  be  most  useful  to  the 
community  as  well  as  to  themselves ;  they  discourage  industry 
and  enterprise,  and  diminish  the  products  of  ingenuity  and 
skill ;  they  prevent  competition  and  enhance  prices ;  they  expose 
the  public  to  all  the  evils  of  monopoly.  "  All  this  is  especially 
applicable  to  wealthy  companies  and  large  corporations,  who 
have  the  means,  unless  restrained  by  law,  to  exclude  rivalry, 
monopolize  business,  and  engross  the  market.  Against  evils 
like  this,  wise  laws  protect  individuals  and  the  public  by  de- 
claring all  such  contracts  void." 

In  Oregon  Steam  ISTav.  Co.  v.  Winsor,^  it  was  said  that  the 
two  principal  grounds  on  which  the  doctrine  is  founded  is  (1) 

Trenton   Potteries   Co.  v.   Oliphant,  1.   19  Pick.    (Mass.)    51,  31  Am. 

56  N.  J.  Eq.  680,  39  A.  923.  Dec.  119. 

4.  Chapin    v.    Brown,    83    Iowa,  2.  20    Wall.     (U.    S.)     64.      See, 

156,   48   N.   W.    1074,   12   L.   K   A.  also,  Allgeyer  v.  Louisiana,  165  U. 

428,  32  Am.  St.  Rep.  297;  Urmston  S.  578,  17  S.  Ct.  427;  United  States 

V.  Whitleley,  62  L.  Times,  455 ;   Col-  v.  Coal  Dealers'  Asso.,  85  Fed.  Rep. 

lins    V.    Loehe,    4    App.    Cag.    674;  252;     United    States    v.    Pipe    and 

Smalley  v.  Greene,  52  Iowa,  241,  3  Steel  Co.,  85  Fed.  Rep.  271,  46  L.  R. 

N.  78,  35  Am.  Rep.  267  and  note;  A.   122,  29  C.   C.  A.   141,  54  U.  S. 

Shober,  etc.  Co.  v.  Kertney,  107  111.  App.  723. 
344;  Burckhardt  v.  Burckliardt,  36 
Ohio  St.  261. 

340 


Ch.    11  RESTRAINT    OF   TRADE.  §§    310,  311 

the  injury  to  the  public  by  beini^  cleprivotl  of  the  restricted 
party's  industry;  (2)  the  injury  to  the  party  himself  being  pre- 
cluded from  pursuing  his  occupation,  and  thus  being  prevented 
from  supporting  himself  and  his  family. 

§  311.  English  doctrine  as  to  limitation  of  time  and  space 
—  Reasonableness. —  The  doctrine  as  to  restraint  of  trade  is 
founded  upon  public  policy,  and  has  undergone  considerable 
change  since  Mitchel  v.  Reynolds,^  as  is  shown  by  Davies  v. 
Davies.^ 

The  result  of  the  English  authorities  dovm  to  the  present  time 
on  this  question  of  a  covenant  in  restraint  of  trade  appears  to  be 
as  follovrs:  "Where  the  restraint  is  general,  that  is,  without 
qualification,  it  is  held  as  being  unreasonable  and  contrary  to 
public  policy;  where  it  is  partial,  that  is,  subject  to  some  quali- 
fication either  as  to  time  or  space,  then  the  question  is  whether 
it  is  reasonable,  and,  if  reasonable,  it  is  good  in  law.  In  con- 
sidering the  question  of  reasonableness,  the  points  to  which  the 
attention  of  the  court  is  specially  directed  are  the  limits  of  time 
and  of  space  and  the  protection  required  for  the  trade  of  the 
covenantee,  this  latter  point  involving  the  examination  of  the 
nature  and  extent  of  the  trade.  The  reasonableness  depends  on 
all  the  circumstances,  which  must  be  duly  weighed  in  each  case. 
If  the  restraint  is  greater  than  can  possibly  be  required  for  the 
protection  of  the  business  of  the  covenantee  the  covenant  is 
unreasonable  and  void.^ 

The  circumstances  which  may  be  legitimately  inquired  into 
on  this  question  of  reasonableness  include  the  general  circum- 
stances under  which  the  trade  is  carried  on  at  the  time  when 
the  covenant  is  entered  into.  The  improvements  in  the  means 
of  communication  which  have  taken  place  in  recent  times  by 
reason  of  railways,  steamships,  postal  facilities,  the  telegraph, 
and  the  telephone,  are  within  the  scope  of  the  inquiry,  and  bear 

1.  P.  Win.   181.  &  Wei.  548,  561;   Rousillon  v.  Rou- 

2.  3'6  Ch.  Div.  3o9.  sillon,    14    Ch.    D.    363 ;    Badische 

3.  Hitchcock  v.  Coper,  6  Adol.  &  Anilin  Und  Soda  Fabrik  v.  Schott, 
E.  438.  453 ;  Ward  v.  Byrne.  5  Mees.  ( 1802) ,  3  Ch.  447. 

341 


§§  311,  312    CONTRACTS  AGAINST  PUBLIC  POLICY.    Ch.  11 

particularly  on  the  question  of  space ;  they  are  relevant  more  or 
less  in  proportion  to  the  greater  or  lesser  area  within  which  the 
trade  sought  to  be  protected  is  carried  on  and  to  the  varying 
nature  of  the  trade  itself.  Such  matters,  of  course,  have  little 
or  no  relevancy  to  a  small  local  business,  but  they  are  relevant 
in  reference  to  the  large  trade  of  a  merchant  and  a  widely-ex- 
tended news-collecting  agency,  or  to  any  other  trade  covering  a 
great  portion  of  the  globe.  What  might  in  former  ages  have 
been  considered  an  unreasonable  restriction  would  not  neces- 
sarily be  so  held  in  the  altered  circumstances  of  the  present 
time.  And  so  a  covenant  unlimited  as  to  space  may,  under  the 
circumstances  be  reasonable.* 

§  312.  American  doctrine  as  to  limitation  of  time  and  space. 
—  It  may  be  that  the  American  decisions  have  not  gone  so  far 
as  the  English,  but  the  old  law  has  been  a  great  deal  modified  in 
some  jurisdictions  in  view  of  modern  methods  of  doing  business.^ 
And  an  agreement  by  which  one  binds  himself  not  to  exercise 
his  trade  or  profession  is  not  void  simply  because  the  agreement 
covers  the  whole  territory  of  the  State.  Such  an  agreement 
cannot  be  enforced  if  unreasonable,  and  it  is  unreasonable  if  its 
restrictions  extend  beyond  what  is  apparently  necessary  for  the 
protection  of  the  one  in  whose  favor  it  is  made.^ 

4.  Maxim    Nordenfelt   Guns   and  v.  Roeber,   106  N.  Y.  473,  13  N.  E. 

Ammunition      Co.      v.      Nordenfelt  419,  60  Am.  Eep.  464;   Whitney  v. 

(1893),!  Ch.  630,  App.  Cas.   (1894)  Shiyton,  40  Me.  224;  Gamewell  Fire 

535.  Alarm  Tel.  Co.  v.  Crane,  160  Mass. 

1.  Oregon     Steam     Nav.     Co.     v.  50,  35  N.  E.  98,  22  L.  R.  A.  673  and 

Winsor,    20    Wall.     (U.    S.)     164;  note,  39  Am.  St.  Rep.  458. 
Fowle  V.  Park,  131  U.  S.  88,  9  S.  Ct.  2.  Herreshofif  v.  Boutineau,  17  R. 

658;   Ellerman  v.  Stock  Yards  Co.,  I.  3,  19  A.  712,  8  L.  R.  A.  469  and 

49  N.  J.  Eq.  217,  23  A.  287:  West-  note,  33  Am.   St.  Rep.  850;   Pierce 

em  Wooden  Ware  Asso.  v.  Starkey,  v.  Fuller,  8  Mass.  223,  226,  5  Am. 

84  Mich.  76,  47  N.  W.  604,  11  L.  R.  Dec.    102;    Oilman    v.    Daught,    13 

A.  503  and  note,  22  Am.   St.   Rep.  Gray     (Mass.),    356,    74    Am.    Dec. 

686;  Matthews  v.  Associated  Press,  634;    Angeer   v.   Webber,    14   Allen 

136  N.  Y.  333,  32  K  E.  981,  32  Am.  (Mass.),  211,  92  Am.  Dec.  748  and 

St.  Rep.  741;  Oliver  v.  Gilmore,  52  note;    Handforth    v.    Jackson.    150 

Fed.  Rep.  562;  Diamond  Match  Co.  Mass.  149,  22  N.  E.  634;  Bishop  v. 

342 


Ch.   11 


RESTRAINT    OK   TRADE. 


§  312 


All  the  English  cases  which  assert  the  doctrine  that  all  con- 
tracts in  general  restraint  of  trade  arc  void,  wore  cases  where 
the  contract  before  the  court  was  limited  or  partial.  The  same 
is  generally  true  of  the  American  casos.^  If  the  agreement  is 
reasonable  it  will  be  upheld.  Thus,  a  covenant  in  a  deed  not 
to  sell  intoxicating  liquors  on  the  premises  in  less  quantities 
than  five  gallons  is  reasonable  ;■*  and  so  is  a  contract  not  to  manu- 
facture ochre  in  a  certain  county  f  or  not  to  carry  on  a  trading 
business  on  certain  premises;^  or  to  sell  sand  from  certain 
premises  by  the  vendee  f  or  not  to  sell  a  particular  line  of  goods 
in  a  certain  town  f  or  not  to  sell  to  any  person  in  a  certain  town 
or  State  except  the  promisee.* 

The  tendency  of  the  courts  in  the  United  States  is  to  follow 
the  late  English  decisions,  which  hold  that  an  agreement  not  to 
exercise  a  trade  or  profession  is  not  void  simply  because  it  is 
not  limited  as  to  space,  provided  it  be  reasonable.^" 


Palmer,  146  Mass.  469,  16  N.  E. 
294,  4  Am.  St.  Rep.  339 ;  Thomas  v. 
Miles,  3  Ohio  St.  274;  Trenton  Pot- 
teries Co.  V.  Oliphant,  56  N.  J.  Eq. 
608,  39  A.  923;  Western  Dist. 
Warehouse  Co.  v.  Hobson,  96  Ky. 
550,  29  S.  W.  308 ;  Peltz  v.  Eichele, 
62  Mo.  171;  Berlin  Machine  Works 
V.  Perry,  71  Wis.  495,  35  N.  W.  82, 
5  Am.  St.  Rep.  236 ;  Sutton  v.  Head, 
86  Ky.  156,  5  S.  W.  410,  9  Am.  St. 
Rep.  274;  Warfield  v.  Booth,  33 
Md.  63;  Goodman  v.  Henderson,  58 
Ga.  567. 

3.  Diamond  Match  Co.  v.  Roeber, 
106  N.  Y.  473,  13  N.  E.  419,  60  Am. 
Rep.  464. 

4.  Sutton  V.  Head,  86  Ky.  156,  5 
S.  W.  410,  9  Am.  St.  Rep.  274. 

5.  Smith's  Appeal,  113  Pa.  St. 
679,  6  A.  251. 

6.  Morris  v.  Manuf.  Co.,  83  Ala. 
665,  3  So.  689. 

7.  Hodge  V.  Sloan,  107  N.  Y.  244, 
17  N.  E.  335,  1  Am.  St.  Rep.  81 T.. 


8.  Clark  v.  Crosby,  37  Vt.  188. 

9.  JNewell  V.  Meyendorf,  9  Mont. 
254,  23  P.  333,  18  Am.  St.  Rep. 
739;  Keith  v.  Optical  Co.,  48  Ark- 
138,  2  S.  W.  777;  Roller  v.  Ott,  14 
Kan.  009. 

10.  Herreshoff  v.  Boutineau,  17 
R.  I.  3,  19  A.  712,  8  L.  R.  A.  469 
and  note,  33  Am.  St.  Rep.  850 ;  Dia- 
mond Mat«h  Co.  V.  Roeber,  106  N. 
Y.  473,  13  N.  E.  419,  60  Am.  Rep. 
464;  Ellerman  v.  Stock  Yards  Co., 
49  N.  J.  Eq.  217,  23  A.  287;  Na- 
tional B.  Co.  V.  Hospital  Co.,  45 
Minn.  272,  47  N.  W.  806,  11  L.  R. 
A.  437  and  note;  Oakdale  [Manuf. 
Co.  V,  Garst,  18  R.  I.  484,  28  A. 
973,  49  Am.  St.  Rep.  784;  Carter  v. 
Ailing,  43  Fed.  Rep.  208;  Oregon 
Steam  Nav.  Co.  v.  Winsor,  20  Wall. 
(U.  S.)  64;  Beal  v.  Chase,  31  Mich. 
490;  Eisel  v.  Hayes,  141  Ind.  41,  40 
N.  E.  119;  Martin  v.  Murphy,  129 
Ind.  464,  28  N.  E.  1118;  Hurson  v. 
Gaum,  59  111.  App.  60;   Gregory  v. 


343 


§  313 


CONTRACTS  AGAINST  PUBLIC  POLICY. 


Ch.  11 


§  313.  Test  of  reasonableness. —  Any  agreement  in  restraint 
of  trade  of  one  of  the  parties  to  a  contract  is  void,  as  being 
against  public  policy,  unless  founded  upon  a  valuable  considera- 
tion and  limited,  as  regards  time,  space,  and  the  extent  of  the 
trade,  to  what  is  reasonable  under  the  circumstances  of  the 
case,  for  the  reason  that  such  contract  tends  to  deprive  the  pub- 
lic of  the  services  of  parties  in  the  employment  and  capacities 
in  which  they  are  most  useful,  and  that  it  tends  to  expose  the 
public  to  the  evil  of  monopoly.^ 

It  is  essential,  in  order  not  to  be  unreasonable,  that  the 
restraint  imposed  must  not  be  larger  than  is  plainly  required 
for  the  protection  of  the  party  with  whom  the  contract  is  made, 
and  whether  it  is  reasonable  in  a  given  case  is  a  question,  not  of 
fact,  but  of  law  for  the  court.  ^ 

The  question  is  whether  the  restraint  is  such  only  as  to  afford 
a  fair  protection  to  the  interests  of  the  party,  in  favor  of  whom 
it  is  given  and  not  so  large  as  to  interfere  with  the  interests  of 
the  public.     Whatever  restraint  is  larger  than  the  necessary 


Spicker,  110  Cal.  15D,  42  P.  576,  52 
Am.  St.  Rep.  70;  Neal  v.  Hines, 
145  Ind.  32,  43  N.  E.  946;  Davis  v. 
Brown,  98  Ky.  475,  32  S.  W.  614,  36 
S.  W.  534;  Meyer  v.  Estes,  164 
Mass.  457,  41  N.  E.  683,  32  L.  R.  A. 
283;  Smith  v.  Brown,  164  Mass. 
584,  42  N.  E.  131;  Cowan 
V.  Fairbrother,  118  N.  Car. 
406,  24  S.  E.  212,  32  L.  R.  A.  829 
and  note,  54  Am.  St.  Rep.  733; 
Western  Dist.  Warehouse  Co.  v. 
Hobson,  96  Ky.  550,  29  S.  W.  308; 
Consumers  Oil  Co.  v.  Nune- 
maker,  142  Ind.  560,  41  N".  E.  1048, 
51  Am.  St.  Rep.  192;  Lufkin  Rule 
Co.  V.  Fringeli,  57  Ohio,  596,  49  N. 
E.  1030,  41  L.  R.  A.  185,  63  Am.  St. 
Rep.  736. 

1.  Kellogg  V.  Larkin,  3  Pin. 
(Wis.)  123,  56  Am.  Dee.  164;  Laub- 
enheimer  v.  Mann,  17  Wis.  542; 
Alger  V.  Thacher,  19  Pick.    (Mass.) 


.51,  31  Am.  Dec.  119;  Bishop  v. 
Palmer,  146  Mass.  469,  473,  16  N. 
E.  299,  4  Am.  St.  Rep.  339 ;  Oregon 
Steam  Nav.  Co.  v.  Winsor,  20  Wall. 
(U.  S.)  66,  67;  Gibbs  v.  Gas  Co., 
130  U.  S.  396,  9  S.  Ct.  553;  Lange 
V.  Werk,  2  Ohio  St.  59;  Gamwell 
Fire  A.  Tel.  Co.  v.  Crane,  160  Mass. 
50,  35  N.  E.  98,  22  L.  R.  A.  673  and 
note,  39  Am.  St.  Rep.  458 ;  Richards 
V.  Seating  Co.,  87  Wis.  503,  58  N. 
W.  787;  More  v.  Bennett,  140  111. 
69,  29  N.  E.  888,  15  L.  R.  A.  361,  33 
Am.  St.  Rep.  216;  Standard  Cotton 
Oil  Co.  V.  Adoue,  83  Tex.  650,  19 
S.  W.  274,  15  L.  R.  A.  598,  29  Am. 
St.  Rep.  690;  Emery  v.  Ohio  Co., 
47  Ohio  St.  320,  24  N.  E.  660,  21 
Am.  St.  Rep.  819. 

2.  Pollock  on  Contracts,  366 
368;  Washburn  v.  Dosch,  68  Wis. 
440,  32  N.  W.  551,  60  Am.  Pep. 
873. 


344 


Ch.    11  RESTRAINT    OF   TRADE.  §§    313,  314: 

protection  of  the  party  can  be  of  no  benefit  to  either.  It  can 
only  be  oppressive;  and  if  oppressive,  it  is,  in  law,  unreason- 
able.^ 

The  common  law  reco^izes  that  there  are  reasonable  com- 
binations and  unreasonable  combinations — that  is  to  say,  some 
promote  and  some  prejudice  public  interests.  The  United 
States  Supreme  Court  has  interpreted  the  Federal  law"*  as  a 
declaration  of  public  policy  that  all  restraints  of  interstate 
trade  is  unreasonable. 

§  314.  The  latest  statement  of  the  test  of  reasonableness. — 

All  restraints  upon  trade  are  bad  as  being  in  violation  of  public 
policy,  unless  they  are  actually  and  not  unreasonably  for  the 
protection  of  parties  dealing  legally  with  some  subject-matter 
of  contract.^  A  limited  restraint  may  be  good,  provided  the  re- 
straint is  reasonable  and  such  as  was  required  for  the  protection 
of  parties  with  whom  the  covenant  is  entered  into.^ 

In  olden  times  all  restraints  of  trading  were  considered  prima 
facie  void.  An  exception  was  introduced  when  the  agreement 
to  restrain  from  trading  was  only  from  trading  in  a  particular 
place  and  upon  reasonable  consideration,  leaving  still  invalid 
agreements  to  restrain  trading  at  all.  Such  general  restraint 
was  then  considered  to  be  of  no  benefit  even  to  the  covenantee 
himself;  but  in  the  present  civilization  it  may  be  said  tliat 

3.  Horner  v.  Graves,  7  Bing.  735,  Rep.  850;  National  Ben.  Co.  v.  Hos- 
743.  pital  Co.,  45  Minn.  272,  47  N.  W. 

4.  Act  of  Congi-ess,  July  2,  1890,  806,  11  L.  R.  A.  437  and  note; 
ch.  647 ;  26  Stat.  209.  Gibbs  v.  Gas  Co.,  130  U.  S.  409,  9  S. 

1.  Leather  Cloth  Co.  v.  Lorsont,  Ct.  553;  Nordenfelt  v.  Maxim  Nor- 
L.  R.  9  Eq.  354;  Rousillon  v.  Rou-  denielt  Guns  and  Anuuunition  Co., 
sillon,  14  Ch.  Div.  351.  App.    Cases    (1894),   535;    Eisel   v. 

2.  Davies  v.  Davies,  36  Ch.  Div.  Hayes,  141  Ind.  41,  40  N.  E.  119; 
359;  Leslie  v.  Lorillard,  110  N.  Y.  Martin  v.  Murphy,  129  Ind.  464,  28 
519,  18  N.  E.  636,  1  L.  R.  A.  456  N.  E.  418;  Brovm  v.  Kling,  101 
and  note;  Diamond  Match  Co.  v.  Cal.  295,  35  P.  995;  Fuller  v.  Hope, 
Roeber,  106  N.  Y.  473,  13  N.  E.  103  Pa.  St.  62,  29  A.  779;  Trenton 
419,  60  Am.  Rep.  464;  Herreshotf  Potteries  Co.  v.  Olipliant,  56  N.  J. 
V.  Boutineau,  17  R.  I.  3,  19  A.  712,  Eq.  680,  39  A.  923. 

9  L.  R.  A.  469  and  note,  33  Am.  St. 

345 


§    314  CONTKACTS    AGAINST    TUBLIC    POLICY.  Ch.     11 

science  and  invention  have  almost  annihilated  both  time  and 
space.  Consequently  there  should  no  longer  exist  any  cast-iron 
rule  making  void  any  agreement  not  to  carry  on  a  trade  any- 
where. The  generality  of  time  or  space  must  always  be  a  most 
important  factor  in  the  consideration  of  reasonableness,  though 
not  per  se  a  decisive  test.  Hence,  a  patentee  and  manufacturer 
of  guns  and  ammunition  for  purposes  of  war  may  covenant  with 
a  company  to  which  his  patents  and  business  had  been  trans- 
ferred that  he  will  not  for  twenty-five  years  engage  except  on 
behalf  of  the  company  either  directly  or  indirectly  in  the  busi- 
ness of  a  manufacturer  of  gims  or  ammunition.  Such  a  cove- 
nant though  unrestricted  as  to  space  was  not,  having  regard  to 
the  nature  of  the  business  and  the  limited  number  of  the  cus- 
tomers, wider  than  was  necessary  for  the  protection  of  the 
company,  nor  injurious  to  the  public  interests  of  the  country; 
it  is,  therefore,  valid  and  may  be  enforced.^  The  test  of  reason- 
ableness is  the  test  of  validity  of  contracts  of  this  kind.* 

Some  courts  have  formulated  arbitrary  rules.  Thus,  in  Ill- 
inois the  court  says  in  relation  to  space  that  trade  and  business 
is  not  affected  by  State  lines,  and  a  contract  may  be  good  in 
restraint  of  trade  which  embraces,  within  reasonable  limits, 
parts  of  different  States,  but  an  agreement  which  applies  to  the 
whole  State  is  void,  and  cannot  be  enforced.^  The  reason  of 
this  rule  is  stated  to  be  that  it  is  against  public  policy  of  the 
State  that  its  citizens  should  not  have  the  privilege  of  pursuing 
their  lawful  occupation  at  some  place  in  the  State,  and  not  be 
compelled  to  leave  the  State  to  engage  in  their  business  and  to 
support  their  family.  The  doctrine  of  a  ISTew  York  case®  is  more 
reasonable,  which  holds  that  the  question,  what  is  a  general  re- 
straint of  trade,  does  not  depend  on  State  lines ;  that  they  are 

3.  Nordenfelt  v.  Maxim  Norden-  5.  Union  Strawboard  Co.  v.  Bon- 
felt  Guns  and  Ammunition  Co.,  field,  193  111.  420,  CI  N.  E.  1038,  86 
App.  Cas.  (1894)  535,  (1893)  1  Am.  St.  Rep.  346.  See,  also,  Chap- 
Ch.  630.  pel  V.  Brockway,  21  Wend.  (N.  Y.) 

4.  Oakdale  Manuf.  Co.  v.  Garst,  157,  an  obiter  dictum  on  this  point. 
18  R.  I.  484,  28  A.  973,  23  L.  R.  A.  6.  Diamond  Match  Co.  v.  Roeber, 
639,  49  Am.  St.  Rep.  784.  106  N.  Y.  473,  13  N.  E.  419,  60  Am. 

Rep.  464. 

346 


Ch.    11  RESTKAINT    OF   TRADE.  §§    314,  'M5 

not  the  boundaries  of  trade  and  commerce  and  that  a  restraint 
is  not  necessarily  general  which  embraces  an  entire  State.  So, 
in  Illinois  an  absolute  covenant  to  refrain  from  trade  within  the 
State  where  the  contract  is  made,  is  necessarily  fatal  to  its 
validity.  In  New  York  such  contract  is  not  necessarily  void, 
because  what  is  a  general  restraint  of  trade  does  not  depend  upon 
State  lines.  The  Illinois  rule  is  arbitrary,  and  such  a  construc- 
tion should  not  be  on  such  contract  as  will  make  it  a  general 
restraint  of  trade  when  on  its  face  it  is  only  partial. 

§  315.  Injuring  the  trade  of  another. —  One's  motives  in  ex- 
ercising an  absolute  right  cannot  be  questioned ;  but  Avhen  the 
right  is  correlative,  it  must  be  exercised  with  due  regard  to  the 
rights  of  others ;  hence,  one  w^ho  exercises  such  a  right  for  the 
sole  purpose  of  injuring  another  is  liable  for  the  injury  inflicted. 
This  is  illustrated  in  cases  involving  the  liability  of  an  employer 
to  a  third  person  for  injury  to  trade  caused  by  the  employer 
threatening  to  discharge  his  workmen  if  they  continued  to  trade 
with  such  person.  Thus,  an  employer  is  relieved  from  liability 
where  he  acted  for  the  purpose  of  securing  the  trade  for  himself.^ 
Here  the  employer  was  seeking  to  build  up  his  trade  and  the 
doctrine  announced  is  correct.  But  in  another  case  the  court 
relieved  the  emploA'er  from  liability  on  the  ground  that  he  had 
a  right  to  discharge  his  employees.^ 

The  question  whether  an  act  which  injures  another  is  rend- 
ered actionable  solely  for  the  reason  that  it  was  done  in  malice, 
is  not  answered  the  same  way  by  the  different  courts.  So  it 
has  been  held  that  a  merchant  is  not  liable  to  an  action  for 
damages  by  sending  a  circular  to  the  retail  trade,  offering  to  sell, 
at  a  reduced  price,  a  small  quantity  of  a  manufacturer's  goods 
for  the  purpose  of  injuring  and  depressing  the  price  of  the 
goods  on  the  market.^    But  in  another  case  an  agreement  among 

1.  Robinson  v.  Texas  Pine  Land  3.  Passaic  Print  Works  v.  Dry 
Asso.  (Tex.  Civ.  App.),  40  S.  W.  Goods  Co.,  181  U.  S.  617,  21  S.  Ct. 
Rep.  843.                                                      922,  62  L.  R.  A.  673  and  note. 

2.  Payne  v.  Western,  etc.,  Co.,  13 
Lea  (Tenn.),  507,  49  Am.  Rep.  666. 

347 


§§  315,  310    CONTRACTS  AGAINST  PUBLIC  POLICY.    Ch.  11 

several  independent  newspaper  publishers  to  compel  a  fourth 
person  engaged  in  like  business,  either  to  reduce  his  rates  for 
advertising  or  lose  customers,  is  a  malicious  conspiracy  to  injure 
such  publisher's  business,  and  the  parties  are  liable.* 


AKTICLE  II. 

Nature  of  the  Transaction. 

oECTiOK  316.  Construction  of  Contract. 

317.  Dealing  with  Exclusive  Persons. 

318.  Sale  of  Secret  Process. 

319.  Sale  of  Good- Will  of  a  Business. 

§  316.  Construction  of  the  contract. —  The  meaning  oi  a 
contract  of  this  character,  however,  is  not  to  be  found  solely 
from  a  consideration  of  its  expressed  terms.  Courts  look  to 
all  the  circumstances  surrounding  the  parties,  and  attendant 
upon  the  transaction,  and  from  a  consideration  of  these  circum- 
stances in  connection  with  the  expressions  of  the  undertaking, 
they  will  first  construe  the  contract,  and  then  proceed  to  pass 
upon  its  reasonableness  as  thus  construed.  So  where  the  parties 
are  engaged  in  a  certain  business,  in  and  covering  a  certain 
territory,  which  could  easily  be  covered  by  them,  and  were  deal- 
ing in  competition  with  each  other,  one  party  may  sell  to  the 
other ;  and  if  the  space  is  not  expressed,  the  contract  will  be  con- 
strued so  as  to  include  and  cover  the  territory  of  their  previous 
competition ;  so  it  will  become  specific  as  to  space  and  time, 
and  the  character  of  the  dealing  to  be  restrained,  and  will, 
therefore,  be  reasonable  and  valid.^    And  the  mere  fact  that  the 

4.  Durner  v.  Huegin,  110  Wis.  Hardware  Co.,  87  Ala.  206,  6  So. 
189,  85  N.  W.  1046,  62  L.  K.  A.  700  41,  13  Am.  St.  Rep.  23  and  note; 
and  note;  Huegin  v.  Wisconsin  (U.  Hubbard  v.  Miller,  27  Mich.  15; 
S.  S.  Ct.),  37  Chi.  Legal  News,  108,  Curtis  v.  Gokey,  68  N.  Y.  300;  War- 
opinion  filed  Nov.  7,  1904,  affirming  field  v.  Booth,  33  Md.  63 ;  Dethlifs 
the  Wisconsin  decision.  v.   Tonisen,   7   Daly    (N.   Y.),   354; 

5.  Moore,   etc.    Hardware    Co.    v.  Beal  v.  Chase,  31  Mich.  490;  Morse 

348 


Ch.  11  RESTRAINT  OF  TRADE.  §§  316,  317 

duration  of  the  restriction  as  to  time  is  indefinite  or  perpetual, 
will  not  of  itself  avoid  the  contract  if  it  be  limited  as  to  place 
and  is  reasonable  and  proper  in  other  respects.^ 

§  317.  Dealing  with  exclusive  persons. —  A  party  may  con- 
tract to  deal  exclusively  with  one  person.  A  vendor  may  bind 
himself  to  manufacture  and  sell  exclusively  to  one  person.^  So, 
also,  a  vendee  may  agree  to  buy  exclusively  from  one  person.^ 
An  agreement  to  work  as  a  servant  or  agent  for  another  ex- 
clusively for  a  certain  period  is  valid.^  And  contracts  may  be 
valid  which  provide  for  exclusive  dealing  with  a  particular 
person.''  This  rule  applies  where  there  is  no  discrimination  and 
no  contravention  of  constitutional  rights ;  otherwise  it  is  illegal. 
Thus,  a  board  of  education  has  no  right  in  making  contracts 
for  public  improvements,  to  compel  the  contractor  to  employ 
only  union  labor.  Such  contract  tends  to  create  a  monopoly 
in  bidding  for  work,  and  in  selecting  members  of  certain  so- 
cieties. Such  provision  in  a  contract  would  limit  competition 
by  preventing  contractors  from  employing  any  except  certain 
persons,  and  by  excluding  all  others  engaged  in  the  same  work, 
and  is  therefore  illegal  and  void  f  such  an  agreement  is  in  vio- 

Machine    Co.    v.   Morse,    103    jNIass.  2.  Brown   v.    Rounsavell,   78   111. 

73,  4  Am.  Rep.  513;  Oregon  Steam  589;  Thornton  v.  Sherratt,  8  Taunt. 

Nav.   Co.  V.  Winsor,  20   Wall.    (U.  529;    Catt  v.   Tourie.   L.   R.   4   Ch. 

S. )    64.      See,   also,   Mollyneairx  v.  App.    654;    Morris    v.    Colman,    18 

Wittenberg,  39  Neb.  547,  58  N.  W.  Ves.  437. 

205;    Fuller   v.   Hope.    163   Pa.    St.  3.  Hartley  v.  Cummings,  5  C.  B. 

62,  29  A.  779.  247;    Pilkington  v.  Scott,   15  Mees. 

6.  Hitchcock  v.  Coper,  6  Adol.  &  &  Wei.  657;  De  Francisco  v.  Bar- 
El.  447;  Bunn  v.  Guy,  4  East,  190;  num,  43  Ch.  Div.  174. 
Mallen  v.  May,  11  Mees.  &  Wels.  4.  George  v.  East  Tenn.  C.  Co., 
652;  Pierce  v.  Woodward,  6  Pick.  15  Lea  (Tenn.),  455,  54  Am.  Rep. 
(Mass.)  206;  Cook  v.  Johnson,  47  425;  Clay  v.  Powell.  85  Ala.  538,  5 
Conn.  178.  So.  330,  7  Am.  St.  Rep.  70;  Roller 

1.  Donnell  v.  Bennett,  22  Ch.  D.  v.    Ott,    14    Kans.    609;    Keith    v. 

835;  Central  S.  R.  Co.  v.  Cushman,  Herschberg  Co.,  48  Ark.   139,  2  S. 

143  Mass.  353,  9  N.  E.  629 ;  Arnot  W.  777. 

V.  Pittston,  etc.,  Co.,  68  N.  Y.  558,  5.  Adams  v.  Breman,  177  111.  194, 

23  Am.  Rep.  190.  52  N.  E.  314,  69  Am.  St.  Rep.  222, 

42  L.  R.  A.  718. 

349 


§§    31Y-319  CONTRACTS    AGAINST   PUBLIC    POLICY.  Ch.    11 

lation  of  common  right,  and  tends  to  create  a  monopoly  and  is 
void.® 

§  318.  Sale  of  secret  process. —  A  party  has  the  right  to  sell 
his  business,  including  as  an  essential  part  thereof  the  secret 
process,  and,  in  order  to  place  the  purchaser  in  the  same  posi- 
tion that  the  vendor  occupied,  to  promise  to  divulge  the  secret 
to  him  alone  and  keep  it  from  anyone  else.  Having  the 
right  to  make  the  promise,  the  vendor  has  the  right  to  make  it 
good  to  the  vendee  to  protect  him  by  covenants  with  proper 
safeguards  against  the  consequences  of  any  violation.  Such 
covenant  is  not  in  general  restraint  of  trade,  but  is  a  reasonable 
measure  of  mutual  protection  to  the  parties,  as  it  enables  the 
one  to  sell  at  the  highest  price  and  the  other  to  get  what  he  paid 
for.  It  imposes  no  restriction  upon  either  that  is  not  beneficial 
to  the  other  by  enhancing  the  price  to  the  seller  or  protecting 
the  purchaser.'  It  is  very  clear  that  such  an  agreement  is  not 
opposed  to  public  policy,  even  if  the  restriction  was  unlimited 
as  to  both  time  and  territory,^  Restraint  of  trade  is  not  ap- 
plicable to  a  business  which  is  a  secret,  and  not  known  to  the 
public,  because  the  public  has  no  right  in  a  secret.^ 

§  319.  Sale  of  good-will  of  a  business. —  A  sale  of  the  good- 
will simply,  and  no  more,  implies  no  obligation  on  the  part  of 
the  vendor  not  to  engage  in  the  same  business  at  another  place 
in  the  same  locality.^     But  it  appears  that  if  the  sale  of  the 

6.  Holden  v.  Alton,  179  111.  318,  Co.  v.  Pool,  51  Hun  (N.  Y.),  107,  4 
53  N.  E.  556.  N.  Y.  S.  861. 

7.  Tode  V.  Grass,  127  N.  Y.  480,  9.  Taylor  v.  Blanchard,  13  Allen 
23  N.  E.  469,  13  L.  R.  A.  652  and  (Mass.),  370,  90  Am.  Dec.  203; 
note,  24  Am.  St.  Rep.  475.  Vickery  v.  Welch,  19  Pick.  (Mass.) 

8.  Diamond  Match  Co.  v.  Roeber,  523;  Peabody  v.  Norfolk,  98  Mass. 
106  N.  Y.  473,  13  N.  E.  19,  60  Am.  452,  96  Am.  Dec.  664;  Leather 
Rep.  464;  Hodge  v.  Sloan,  107  N.  Cloth  Co.  v.  Lorsont,  9  Eq.  345; 
Y.  244,  17  N.  E.  335,  1  Am.  St.  Rep.  Morse  Mach.  Co.  v.  Morse,  103 
816;  Leslie  v.  Lorillard,  110  N.  Y.  Mass.  73,  4  Am.  Rep.  513. 

519,  18  N.  E.  363,  1  L.  R.  A.  456  1.  Moreau  v.   Edwards,   2  Tenn. 

and  note;  Watertown  Thermometer       Ch.  347;  Porter  v.  Gorman,  65  Ga. 


350 


Ch.   11 


RESTRAINT    OK    TRADE. 


§  319 


good-will  is  "vvitliin  certain  limits,  which  is  the  leo^itimate  sub- 
ject matter  of  the  contract,  it  carries  with  it  the  implied  cove- 
nant, as  in  other  sales,  that  the  vendor  will  not  do  anything  to 
disturb  or  injure  the  vendee  in  the  enjoyment  of  that  which  he 
purchased.^ 

A  contract  by  a  physician  for  the  sale  of  his  practice  and 
good-will  in  a  specified  town  is  not  void  as  against  public  policy.' 
If  the  agreement  is  not  to  engage  in  the  same  business  for  a  time 
certain,  the  vendor  may,  on  the  expiration  of  the  time,  enter  into 
the  same  business  and  solicit  his  former  patrons.*  If  the  sale  is 
compulsory  he  may  again  enter  the  business  and  solicit  his  for- 
mer trade.^  After  selling  the  good-will  and  business,  the  ven- 
dor is  not  prohibited  from  hiring  to  a  party  in  the  same  business 
and  in  the  same  town.^  The  sale  of  the  good-will  of  a  school 
does  not  obligate  the  vendor  to  use  personal  efforts  to  influence 
the  attendance  of  pupils.^ 


11;  Bergamini  v.  Bastian,  35  La. 
Ann.  60,  48  Am.  Rep.  216  and  note; 
Bassett  v.  Percival,  5  Allen 
(Mass.),  345. 

2.  Dwight  V.  Hamilton,  113  Mass. 
175;  Munsey  v.  Butterfield,  133 
Mass.  492;  Angler  v.  Webber,  14 
Allen  (Mass.),  211,  92  Am.  Dec. 
748  and  note;  Rauft  v.  Reimers,  200 
111.  386,  65  N.  E.  720,  60  L.  R.  A. 
291. 

3.  Dwight  V.  Hamilton,  113  Mass. 
175 ;  Cole  v.  Edwards,  93  Iowa,  477. 
61  N.  W.  940,  60  L.  R.  A.  291 ;  Gil- 
man  V.  Dwight,  13  Gray  (Mass.), 
356,  74  Am.  Dec.  634;  Atkyns  v. 
Kinnier,  4  Exch.  776;  Hoyt  v. 
Holly,  39  Conn.  326,  12  Am.  Rep. 
390.    See,  also,  Powers  v.  Stout,  67 


Iowa,  341,  25  N.  W.  273;  Haldeman 
V.  Sinionton,  55  Iowa,  144,  7  N. 
493;  Smalley  v.  Greene,  52  Iowa, 
241,  3  N.  78,  35  Am.  Rep.  267  and 
note;  Hedge  v.  Lowe,  47  Iowa,  137; 
French  v.  Parker,  16  R.  I.  219,  14 
A.  870,  27  Am.  St.  Rep.  733;  Bimn 
V.  Guy,  4  East,  190;  Com- 
pare Mandeville  v.  Harman,  42  N. 
J.  Eq.  185,  7  A.  37. 

4.  Hanna  v.   Andrews,   50   Iowa, 
462. 

5.  Walker  v.  Mattraw,  19  Ch.  D. 
355. 

6.  Grimm   v.    Warner,    45    Iowa, 
106. 

7.  McCord  v.  Williams,  15  Norris 
(Pa.),  78. 


351 


CHAPTER  XII. 

Industrial  Combinations. 


ARTICLE  I. 

Unlawful  Combinations  and  Cokpokate  Trusts. 

Section  320.  Monopoly — Contracts  in  Restraint  of  Trade. 

321.  Restraint,  General  or  Partial. 

322.  Legal  Combinations. 

§  320.    Monopoly  —  Contracts  in  restraint  of  trade. —  At 

common  law  a  contract  callinj^  for  a  reasonable  restraint  of 
trade  will  be  upheld.  It  is  only  the  unreasonable  restraint  of 
trade  that  receives  the  condemnation  of  the  law,  whereby  mon- 
opolies are  created.  Monopolies  may  be  divided  into  three 
classes :  1.  All  sources  of  supply  may  be  put  in  the  hands  of  one 
company,  so  no  other  source  of  supply  is  available.  Such  a 
monopoly  is  absolute,  and  can  sell  its  products  at  any  price 
limited  to  the  necessities  of  commerce.  2.  The  monopoly  may 
have  the  best  and  most  economical  source  of  supply,  but  compe- 
tition still  be  possible,  when  competition  can  be  suppressed  by 
selling  so  low  by  the  monopoly  that  competition  is  impossible. 
3.  The  monopoly  may  use  its  general  control  of  the  market  to 
require  all  parties  to  buy  from  it  alone  under  penalty  of  being 
denied  further  supplies.  This  method  is  generally  practiced  by 
the  monopoly. 

Monopolies  are  as  old  as  human  history.  They  were  for- 
bidden by  the  laws  of  Greece  and  Rome;  they  are  prohibited 
by  the  common  law.  During  a  part  of  Queen  Elizabeth's  reign 
they  were  not  forbidden.  They  became  so  exorbitant  in  their 
prices  that  they  became  intolerant  and  most  pernicious  in  their 
consequences,  and  were  regulated.     Parliament  chartered  the 

352 


Ch.    12  INDUSTRIAL    COMBINATIONS.  §    320 

East  India  Company  in  order  to  build  up  an  empire  in  the  East, 
but  it  became  so  oppressive  that  it  was  overthrown  as  a  matter  of 
necessity.  Many  thousands  of  monopolies  exist  in  the  United 
States.  The  gigantic  combinations  are  authorized  to  buy  up 
the  stock  of  any  other  corporation,  so  they  may  gain  control  of 
any  industry.  Before  the  time  of  gigantic  industrial  and  com- 
mercial combinations,  there  was  individualistic  initiative,  and 
self-reliance  produced  rivalry  that  created  the  keenest  interest 
and  kept  all  the  faculties  in  continual  activity.  The  original 
colonies  grew  under  this  system  into  one  of  the  wealthiest  na- 
tions in  Christendom.  The  wealth  thus  created  by  years  of 
struggle  and  competition  has  been  utilized  by  the  combinations, 
thus  crushing  a  system  of  competition  which  has  accomplished 
the  greatest  commercial  success  known  to  history,  proving  the 
old  maxim  that  competition  is  the  life  of  trade.  These  indus- 
trial and  commercial  combinations,  some  times  called  trusts, 
are  taking  the  place  of  competition  and  business  rivalry,  with- 
out trying  to  protect  the  legal  rights  of  the  individual;  but 
now  the  law  must  protect  the  citizen  from  the  danger  of  the  de- 
struction of  his  means  of  livelihood.  At  the  present  time  many 
avenues  of  individual  success  are  practically  closed  to  men  of 
moderate  fortunes,  and  are  sealed  against  young  men  of  ability 
and  energy.  This  great  accumulation  of  capital  is  a  menace 
to  the  very  foundation  of  the  republic.  Such  vast  and  arbi- 
trary combinations  will  forever  retard  the  equal  distribution 
of  wealth.  The  unbroken  experience  of  ages  has  clearly  estab- 
lished the  fact  that  competition  is  the  system  conducive  to  the 
best  interest  of  a  people.  In  all  of  the  States  where  the  com- 
mon law  prevails,  contracts  greatly  in  restraint  of  trade,  and 
monopolies  of  all  kinds  are  illegal;  and  though  some  States 
have  chartered  corporations  with  powers  '"to  do  all  things 
that  a  natural  person  can  do,"  yet  such  corporations  cannot 
create  a  monopoly,  for  a  natural  person  is  forbidden  to  do 
that  without  violating  the  law.  Some  of  the  States  favor  these 
combination  and  derive  a  considerable  revenue  from  the  grant 
of  unlimited  charters. 


353 


§  320 


CONTKACTS    AGAINST    PUBLIC    POLICY. 


Ch.    13 


The  common  law  and  statutory  law  have  been  applied  to  sup- 
press these  monopolies  in  many  of  the  States,  and  how  well 
their  application  has  remedied  the  evils  will  now  be  considered. 

When  a  combination  is  formed  among  parties  which  create 
a  monopoly  by  restricting  competition  and  controlling  the  price 
of  an  article  of  commerce,  the  contract  is  void  at  common  law 
and  against  public  policy/  Hence,  where  a  number  of  persons 
enter  into  an  agreement  the  object  of  which  is  purely  and  sim- 
ply to  silence  and  stifle  competition  among  themselves,  the  agree- 
ment is  in  restraint  of  trade,  and  void  as  against  public  policy.' 
Thus,  a  combination  among  brewers  to  prevent  competition 
among  themselves  in  the  sale  of  beer  is  illegal.^ 

Combinations  of  this  character  are  illegal.*  Thus,  where  a 
contract  is  entered  into  by  the  grain  dealers  of  a  town,  which 
on  its  face  indicates  that  they  had  formed  a  partnership  for  the 


1.  United  States  v.  Feight  Asso., 
166  U.  S.  290,  17  S.  Ct.  540; 
Cummings  v.  Stone  Co.,  164  N.  Y. 
401,  58  N.  E.  523,  52  L.  R.  A.  262, 
79  Am.  St.  Rep.  655;  Emery  v. 
Candle  Co.,  47  Ohio  St.  320,  24  N. 
E.  660,  21  Am.  St.  Rep.  819;  Salt 
Co.  V.  Guthrie,  35  Ohio  St.  666; 
Pittsburg  Carbon  Co.  v.  McMillin, 
119  N.  Y.  346,  23  N.  E.  530,  7  L. 
R.  A.  46;  Richardson  v.  Buhl,  77 
Mich.  632,  43  N.  W.  110,  6  L.  R.  A. 
457  and  note;  Santa  Clara,  etc.,  Co. 
V.  Hayes,  76  Cal.  387,  18  P.  391,  9 
Am.  St.  Rep.  211;  Pacific  Factor 
Co.  V.  Adler,  90  Cal.  110,  27  P.  36, 
25  Am.  St.  Rep.  102;  Stewart  v. 
Mallon,  43  N.  Y.  149,  3  Am.  Rep. 
678;  Clancey  v.  Salt  Manuf.  Co., 
62  Barb.  (N.  Y.)  407;  Cohen  v. 
Envelope  Co.,  166  N.  Y.  292,  59  N. 
E.   906. 

2.  Nester  v.  Brewing  Co.,  161  Pa. 
St.  473,  29  A.  102,  24  L.  R.  A.  247, 
41  Am.  St.  Rep.  894;  People  v.  Milk 
Exchange.  145  N.  Y.  267,  39  N.  E. 
1062,  27  L.  R.  A.  4"?7,  45  Am.  St. 


Rep.  609;  Judd  v.  Harrington,  139 
N.  Y.  105,  34  N.  E.  90;  People  v. 
Sheldon,  139  N.  Y.  251,  34  N.  E. 
785,  23  L.  R.  A.  221,  36  Am.  St. 
Rep.  609;  Merz  Capsule  Co.  v.  Cap- 
sule Co.,  67  Fed.  Rep.  414;  Ford 
V.  Milk  Shippers  Asso.,  155  Hi. 
166,  29  N.  E.  651,  27  L.  R.  A.  298; 
State  V.  Standard  Oil  Co.,  49  Ohio 
St.  137,  30  N.  E.  270,  15  L.  R.  A. 
145,  34  Am.  St.  Rep.  541;  Bishop  v. 
American  Preserve  Co.,  157  HI.  284, 
41  N.  E.  765,  48  Am.  St.  Rep.  317. 

3.  Nester  v.  Brewing  Co.,  161 
Pa.  St.  473,  29  A.  102,  24  L.  R.  A. 
247,  41  Am.  St.  Rep.  894. 

4.  State  v.  Distillery  Co.,  29 
Neb.  700,  46  N.  W.  155; 
State  V.  Standard  Oil  Co.,  49 
Ohio  St.  137,  30  N.  E.  270,  15 
L.  R.  A.  145,  34  Am.  St.  Rep.  541; 
Distilling  and  Cattle  Feeding  Co.  v. 
People,  156  111.  448,  41  N.  E.  188, 
47  Am.  St.  Rep.  200;  People  v.  Gas 
Trust  Co.,  130  111.  268,  22  N.  E. 
798,  17  Am.  St.  Rep.  319. 


354 


Ch.    12  INDUSTRIAL    COMBINATIONS.  §§    320,  321 

purpose  of  dealing  in  grain,  but  the  true  object  of  which  was 
to  form  a  secret  combination  which  should  stifle  all  competition 
and  enable  the  parties  to  control  prices,  it  is  void  on  the  ground 
of  public  policy.^  The  common  law  forbids  the  organization  of 
such  combinations,  composed  of  numerous  corporations  and 
firms.  They  are  dangerous  to  the  peace  and  good  order  of 
society,  and  they  arrogate  to  themselves  the  exercise  of  powers 
destructive  of  the  right  of  free  competition  in  the  markets  of 
the  country,  and,  by  their  aggregate  power  and  influence,  im- 
peril the  free  and  pure  administration  of  justice.^ 

The  right  of  a  railroad  company  to  charge  reasonable  rates 
does  not  include  the  right  to  enter  into  a  combination  with 
competing  roads  to  maintain  reasonable  rates.'^  So  the  legis- 
lature may  give  a  corporation  the  same  powers  to  regulate  trade 
within  its  park  that  is  generally  granted  municipal  corporations 
to  regulate  trade  within  their  limits.  And  the  power  to  regulate 
a  useful  trade  does  not  authorize  its  prohibition  or  the  creation 
of  a  monopoly.* 

§  321.  Restraint,  general  or  partial. —  If  it  appears  that  such 
a  combination  is  injurious  to  the  public,  the  courts  will  not 
stop  to  inquire  as  to  the  degree  of  injury  inflicted,  nor  whether 
the  restraint  be  geneeral  or  partial,  nor  will  they  consider  the 
form  and  declare  purpose  of  the  combination.^     The  test  ques- 

5.  Crafts  v.  McConoughy,  79  111.  8.  Thousand  Island  Park  Asso.  v. 
346,  22  Am.  Kep.  171;  India  Rub-  Tucker,  173  N.  Y.  203,  65  N.  E. 
ber  Co.  v.  Koch,  14  La.  Ann.  168.  975,  reversing  59  App.  Div.  627,  69 

6.  Richardson  v.  Buhl,  77  Mich.  N.  Y.  S.  1149. 

632,  43  N.  W.  1102,  6  L.  R.  A.  407  1.  Texas    Standard    Oil    Co.    v. 

and  note;   Emery  v.  Candle  Co.,  47  Adoue,  83  Tex.  650,  19  S.  W.  274, 

Ohio  St.  320,  24  N.  E.  660,  21  Am.  15   L.   R.  A.  598,   29  Am.   St.  Rep. 

St.    Rep.    819;    State    v.    Nebraska  690;  Raymond  v.  Leavitt,  46  Mich. 

Distilling  Co.,  29  Neb.  700,  46  N.  447,  9  N.  525,  41  Am.  Rep.    170; 

W.    155;    National   Harrow   Co.   v.  Qark  v.   Needham,    125   Mich.    84, 

Quick,  67  Fed.  Rep.  130;  Bishop  v.  93  N.  W.  1027,  51  L.  R.  A.  785,  84 

American    Preserves    Co.,    157    111.  Am.  St.  Rep.  559;  Nester  v.  Brew- 

284,  41  N.  E.  765,  48  Am.  St.  Rep.  ing  Co.,  161  Pa.  St.  473,  29  A.  102, 

317.  24  L.   R.   A.  247,  41   Am.   St.  Rep. 

7.  United  States  v.  Freight  Asso.,  894. 
166  U.  S.  290,  17  S.  Ct.  540. 

355 


§    321  CONTRACTS   AGAINST   PUBLIC   POLICY.  Ch.    12 

tion,  in  every  case  coming  under  tliis  head,  is  whether  or  not  a 
contract  in  restraint  of  trade  exists  which  is  injurious  to  the 
public  interests.  If  injurious,  it  is  void  as  against  public  pol- 
icy. Courts  will  not  stop  to  inquire  as  to  the  degree  of  injury 
inflicted.  It  is  enough  to  know  that  the  natural  tendency  of 
such  contracts  is  injurious.  The  application  of  the  rule  does 
not  depend  upon  the  number  of  those  who  may  be  implicated, 
nor  the  extent  of  space  included,  in  the  combination ;  but  upon 
the  existence  of  injury  to  the  public.  One  combination,  con- 
sisting of  but  part  of  those  engaged  in  a  given  branch  of  trade, 
may  amount  to  a  practical  monopoly,  while  another,  less  extens- 
ive in  its  scope,  may,  as  well,  bring  disaster  in  its  train.  The 
difference  lies  only  in  degree,  but  equally  forbids  the  aid  of 
courts.^    The  true  test  is  the  effect  upon  public  interests. 

And  when  the  notice  of  the  character  of  the  combination  is 
in  the  channel  of  an  assignee's  title,  he  is  not  innocent  of  par- 
ticipation in,  or  knowledge  of,  the  illegality  of  the  combination, 
and  must  be  treated  as  having  taken  subject  to  the  disabilities 
of  his  assignor.^ 

Where  the  combination  is  against  public  policy  and  void, 
the  law  will  not  attempt  to  adjust  differences  which  arise  out 
of  the  transactions  which  it  condemns,  even  though  the  pro- 
ceeds or  profits  of  the  unlawful  combination  may  be  in  the 
hands  of  the  parties  to  it*  If  a  State  passes  anti-trust  laws, 
they  must  not  improperly  discriminate.  Thus,  where  a  statute 
discriminates  in  favor  of  agricultural  products  or  live  stock  in 
the  hands  of  the  producer  or  raiser,  it  is  unconstitutional  as  in 

2.  More  v.  Bennett,  140  111.  69,  Co.,  161  Pa.  St.  473,  29  A.  102,  24 
29  N.  E.  888,  15  L.  R.  A.  361,  33  L.  R.  A.  247,  41  Am.  St.  Rep.  894. 
Am.  St.  Rep.  216.  See,  also,  Hooker  4.  Brooks  v.  Martin,  2  Wall.  (U. 
V.  Vandewater,  4  Denio  (N.  Y.),  S.)  70;  Norton  v.  Blinn,  39  Ohio 
349,  47  Am.  Dec.  258;  Hilton  v.  St.  145;  Armstrong  v.  Toler,  11 
Eckerley,  6  El.  &  Bl.  66;  Salt  Co.  Wheat.  (U.  S.)  258;  Snell  v. 
V.  Guthrie,  35  Ohio  St.  666;  Morris  Dwight,  120  Mass.  16;  Cummings 
Run  Coal  Co.  v.  Coal  Co.,  68  Pa.  v.  Foss,  40  111.  App.  523.  See,  also, 
St.  173,  8  Am.  Rep.  159.  McMullan  v.  Hoflfman,  69  Fed.  Rep. 

3.  Chamberlain  v.  Barnes,  26  509;  Atlas  Nat.  Bank  v.  Holm,  71 
Barb.  (N.  Y.)  160;  Riddle  v.  Hall,  Fed.  489;  Kine  v.  Turner,  27  Oreg. 
99  Pa.  St.   116;   Nester  v.  Brewing  350,  14  P.  664. 

356 


Cb.    12  INDUSTRIAL    COMBINATIONS.  §§    321,  322 

conflict  with  the  Fourteenth  Amendment.^  So  where  an  anti- 
trust statute  exempts  agriculturalists  and  live  stock  raisers,  it  is 
void.^ 

§  322.  Legal  combinations. —  In  the  cases  in  which  com- 
binations have  been  upheld  by  the  courts,  it  was  apparent  from 
the  contracts  themselves  that  they  did  not  tend  to  create  a  mono- 
poly or  put  an  end  to  competition.^  If  the  combination  is  not 
made  to  control  prices  or  create  a  monopoly,  it  is  not  against 
public  policy."  It  does  not  follow  that  every  combination  in 
trade,  even  though  such  combination  may  have  the  effect  to 
diminish  the  number  of  competitions,  is  therefore,  illegal. 
Monopolies  are  liable  to  be  oppressive,  and  hence,  are  deemed 
to  be  hostile  to  the  public  good.  But  combinations  for  mutual 
advantage  which  do  not  amount  to  a  monopoly  and  leave  the 
field  of  competition  open  to  others  are  neither  within  the  rea- 
son nor  the  operation  of  the  rule.  Hence,  where  several  com- 
panies engaged  in  the  manufacture  of  an  article  consolidate  as 
a  corporation,  for  the  purpose  of  stopping  competition  among 
them,  and  agree  that  none  of  them  shall  engage  in  the  business 
for  a  certain  time,  such  arrangement  is  not  invalid  as  creating 
a  monopoly.'  It  has  been  held  in  Missouri  that  the  Associated 
Press  is  not  a  monopoly  within  the  prohibition  of  the  statute, 
and  it  can  make  exclusive  contract.*     But  the  Illinois  court 

5.  Connally  v.  Union  Sewer  Pipe  353,  9  X.  E.  629;  Swann  v.  Swann, 
Co.,  184  U.  S.  541,  22  S.  Ct.  431,  21  Fed.  Rep.  301;  Gompers  v.  Roch- 
overruling,  in  effect.  Price  v.  People,  ester,  56  Pa.  St.  194;  Smith's  Ap- 
193  111.  114,  61  N.  E.  844,  55  L.  R.  peal,  113  Pa.  St.  549,  6  A.  251,  57 
A.  588.  Am.   Rep.   483   and   note;    Raub   v. 

6.  People  V.  Foundry  Co.,  201  111.  Van  Horn,  133  Pa.  St.  573,  19  A. 
236,  86  Am.  St.  Rep.  306  and  note,  704. 

66  N.  E.  349.  2.  Marsh    v.    Russell,    66    N.    Y. 

1.  Shrainka    v.    Schoringhausen,  288. 

8  Mo.  App.  522;   Ontario  Salt  Co.  3.  Oakdale  Manuf.  Co.  v.  Garst, 

V.    Salt    Co.,    18    Grant's    Ch.    540;  18  R.  I.  484,  28  A.  973,  23  L.  R.  A. 

San  Diego  Water  Works  v.  Flume  639,  47  Am.  St.  Rep.  784.    See,  also, 

Co.,  108  Cal.  549,  41  P.  495,  29  L.  Central   Shade  Roller  Co.   v.  Cush- 

R.  A.  839 ;  Collins  v.  Locke,  L.  R.  4  man,  143  Mass.  355,  9  N.  E.  629. 

App.     Cas.     674;     Central     Shade  4.  Star   Publishing  Co.  v.   Asso- 

Roller  Co.  v.  Cushman,   143  Mass.  ciated  Press,  159  Mo.  410,  81  Am. 

357 


§§  322,  323       coNTEACTs  against  public  policy.       Ch.  12' 

holds  that  the  Associated  Press  must  serve  all  newspapers  alike 
in  furnishing  news ;  and  a  by-law  disciplining  its  members  who 
dealt  with  news  agencies  contrary  to  the  prohibition,  creates  a 
monopoly  of  the  news,  and  is  contrary  to  the  public  policy  of 
the  State  of  Illinois,  and  hence  void.^ 

The  Associated  Press,  in  the  Missouri  case,  claimed  that  it 
was  in  form  a  corporation,  but  essentially  it  was  only  a  co- 
operative society  based  on  agreement  among  its  members  to 
gather  the  news ;  that  it  was  not  engaged  in  news-gathering  as 
a  commercial  enterprise,  and  that  it  carried  on  its  business 
without  any  effort  of  profit-making,  and  that  its  laws  binding 
its  members  by  exlcusive  contracts  were  not  in  contravention 
of  any  State  or  United  States  law.  The  Missouri  court  upheld 
the  legality  of  the  Association's  by-laws  and  the  Illinois  court 
declared  them  void. 


ARTICLE  II. 

Pooling  and  Merger  of  Railroad  Business. 

Section  323.  Corporate  Trusts. 

324.  Pooling  Railroad  Business. 

325.  Rebates  to  Shippers. 

326.  Monopoly  in  Interstate  and  International  Trade. 

327.  Corporate  Trusts  and  Labor. 

§  323.  Corporate  trusts  —  Industrial  and  commercial  com- 
binations.—  Competition  in  trade  has  been  the  basis  of  our 
civilization.  But  competition  is  coming  to  an  end.  The  so- 
called  corporate  trusts  are  absorbing  the  small  owners  and 
producers  of  commercial  products.  It  is  estimated  that  the 
United  States  Steel  Corporation  is  a  creation  of  a  dozen  pro- 
ducers absorbed,  which  were  themselves  combinations  of  other 
producers.  The  Amalgamated  Copper  Company  has  property 
once  belonging  to  nearly  a  thousand  mining  claims,  each  one 

St.  Rep.  368,  60  S.  W.  91,  51  L.  R.        Associated   Press,    184   111.   438,   56 
A.  151.  N.  E.  822,  48  L.  R.  A.  568,  75  Am. 

5.  Inter-Ocean  Publishing  Co.  v.        St.  Rep.  184. 

358 


Ch.    12  INDUSTRIAL    COMBINATIONS.  §    323 

owned  by  a  half  a  dozen  miners.  The  department  stores  have 
absorbed  hundreds  of  business  enterprises  of  merchants,  butch- 
ers, shoe-dealers,  and  the  like.  The  Standard  Oil  Company 
has  absorbed,  by  contract  and  other  ways,  the  business  of  ten 
thousand  corporations  and  merchants  throughout  the  United 
States.  The  great  railway  combinations  are  made  up  by  the 
combination  of  hundreds  of  smaller  lines.  This  process  of  com- 
bining of  combinations  is  going  on,  and  the  end  is  not  in 
sight,  and  competition  will  no  longer  be  an  element  that  shall 
conduce  to  the  building  up  of  our  commerce.  If  the  Northern 
Pacific  Railroad  Company  and  the  Great  Northern  Railroad 
Company  had  been  permitted  to  merge  their  interests,  then  all 
the  railroads  of  the  nation  could  have  pooled  their  issues,  and 
combined  into  one  great  transportation  company  on  the  perfec- 
tion of  whose  manipulations  the  welfare  of  the  nation  might 
depend.  Competition  must  be  restored,  even  if  the  State  has  to 
enter  the  field.  Whether  the  State  should,  under  the  right  of 
eminent  domain,  take  the  railroads  and  the  coal  lands,  is  a 
question  of  great  importance.  The  United  States  carries  the 
mail  at  a  reasonable  cost.  Some  cities  furnish  gas  and  water 
to  citizens  at  reasonable  rates.  But  it  is  better  for  the  individ- 
ual to  live  under  conditions  where  he  can  take  the  initiative 
and  become  self-reliant  and  prosperous.  But  if  this  condition 
cannot  longer  exist  under  the  laws,  the  State  must  enter  the  con- 
test, a  master  which  can  be  governed  by  the  citizens. 

The  great  question  now  is  to  suppress  the  modern  gigantic 
commercial  and  industrial  combinations,  which  are  changing 
the  commercial  jurisprudence  of  the  United  States,  and  driving 
out  of  business  the  small  trader  and  the  small  producer. 

The  States  and  the  United  States  have  passed  laws  prohibit- 
ing these  combinations,  but  so  long  as  the  combination  returns 
a  good  profit,  the  combinations  wall  endeavor  to  keep  ahead  of 
the  legislature.  The  law,  so  far  as  settled,  will  now  be  dis- 
cussed, though  some  decisions  are  in  conflict. 

A  combination  cannot  legalize  its  actions  by  incorporation 
of  its  members  into  one  corporate  trust,  because  the  incorpor- 

359 


§    323  CONTRACTS   AGAINST    PUBLIC    POLICY.  Cll.    12 

ation  of  an  organization  formed  to  monopolize  a  business,  and 
the  transfer  to  the  corporate  trust  of  the  property  of  the  various 
members,  do  not  purge  the  combination  of  its  illegality.^  So 
where  a  corporate  trust  has  for  its  object  a  virtual  monopoly  of 
the  business  of  producing  petroleum,  and  of  manufacturing, 
refining  and  dealing  in  it  and  all  its  products,  throughout  the 
entire  country,  and  by  which  it  might  not  merely  control  the 
production,  but  the  price  at  pleasure,  it  is  an  unlawful  organ- 
ization, and  such  agreement  is  not  only  ultra  vires,  but  is  con- 
trary to  the  policy  of  the  State,  and  is  void.^  And  so  a  corpor- 
ation organized  for  the  purpose  of  controlling  the  manufacture 
and  sale  of  friction  matches,  and  by  means  of  which  all  com- 
petition was  stifled  and  opposition  crushed,  and  the  whole  bus^ 
iness  of  the  country  in  that  line  engrossed  by  the  corporation, 
is  a  menance  to  the  public,  its  object  and  direct  tendency  being 
to  prevent  fair  competition  and  to  control  prices.^ 

Until  1885  Congress  made  little  or  no  attempt  to  regulate 
interstate  commerce.  The  railway  monopoly  was  left  to  the 
State  to  suppress.  Then  in  1890  it  passed  the  Sherman  Anti- 
Trust  Act,*  which  made  a  radical  prohibition  of  all  combina- 
tions in  restraint  of  trade,  whether  reasonable  or  unreasonable.^ 
This  act  has  been  the  subject  of  judicial  interpretation  from 
that  time  until  the  present.     The  famous  Sugar  Trust  case^ 

1.  Distilling  and  Cattle  Feeding  Am.  St.  Rep.  319;  People  v.  Milk 
Co.  V.  People,  156  111.  448,  41  N.  E.  Exchange  Co.,  145  N.  Y.  267,  39 
188,  47  Am.  St.  Rep.  200;  State  v.  N.  E.  1062,  27  L.  R.  A.  437,  45  Am. 
Nebraska  Distilling  Co.,  29  Neb.  St.  Rep.  609;  Ford  v.  Milk  Ship- 
700,  46  N.  W.  155.  pers    Asso.,   155  111.   166,  39  N.  E. 

2.  State  V.  Standard  Oil  Co.,  49  651,  27  L.  R.  A.  298;  Merz  Capsule 
Ohio  St.  137,  30  N.  E.  279,  15  L.  R.  Co.  v.  Capsule  Co.,  67  Fed.  Rep. 
A.  145,  34  Am.  St.  Rep.  541.  See,  414;  Judd  v.  Harrington,  139  N.  Y. 
also.  People  v.  Sugar  Refining  Co.,  105;  People  v.  Sheldon,  139  N.  Y. 
121  N.  Y.  582,  24  N.  E.  834,  9  L.  R.  251,  34  N.  E.  785,  23  L.  R.  A.  221, 
A.   33  and  note,   IS  Am.   St.  Rep.  36  Am.  St.  Rep.  690. 

843.  4.  Act  of  Congress,  July  2,  1890, 

3.  Richardson  v.  Buhl,  77  Mich.       26  Stat.  209. 

632,  43  N.  W.  1102,  6  L.  R.  A.  457  5.  United  States  v.  Freight  Asso., 

and  note.     See,  also.  People  v.  Gas  166  U.  S.  290,  17  S.  Ct.  540. 

Trust  Co.,   130   111.   268,  22   N.   E.  6.  United  States  v.  Knight  Co., 

788,  8  L.  R.  A.  497   and  note,   17  156  U.  S.  1,  15  S.  Ct.  249. 

360 


Ch.    12  INDUSTEIAI.    COMBINATIONS.  §    323 

holds  that  a  combination  to  purchase  refineries  throughout  the 
United  States  is  not  a  restraint  of  commerce,  because  the 
products  of  the  refineries  thus  purchased  might  never  enter  into 
the  channels  of  interstate  trade.  The  authority  of  this  case  was, 
in  efiect,  modified  by  the  Addyston  Pipe  Company,^  where  a 
combination  of  pipe  manufacturers  sought  to  monopolize  their 
industry,  and  for  that  purpose  allotted  certain  territory  in  dif- 
ferent States  to  constituent  companies  wherein  each  of  which 
had  the  exclusive  right,  under  certain  conditions,  to  sell.  The 
court  said,  that  though  the  manufacture  of  pipe  was  not  com- 
merce, yet  the  allotment  of  interstate  territory  for  the  sale  of 
pipe  was  a  direct  restraint  of  interstate  commerce  and  therefore 
the  combination  was  illegal.  This  decision  seems  to  conflict 
with  the  Sugar  Trust  case  as  to  what  is  interstate  commerce. 

A  distinction  exists  between  interstate  and  intrastate  com- 
merce. The  former  is  regulated  by  Congress,  the  latter  by  the 
State.  So  commerce  carried  on  within  a  State  cannot  be  reg- 
ulated by  Congress.^  Whenever  a  corporation  of  a  State  is  ab- 
sorbed by  a  foreign  corporate  trust,  it  ceases  to  be  a  domestic 
corporation,  and  the  trust  owning  it  is  a  foreign  corporation, 
which  must  be  subject  to  the  same  restrictions  and  duties  as 
domestic  corporations,  and  has  no  greater  power,  if  admitted 
by  comity  into  a  State.®  So  where  a  corporate  trust  absorbs  dif- 
ferent corporations  in  different  States,  it  and  the  corporations 
absorbed  become  foreign  to  the  State  other  than  its  situs,  and 
can  be  controlled  by  the  State  as  to  conditions  of  entry  into 
the  State,  and  acceptance  of  imposed  restrictions.  A  corpora- 
tion as  an  entity,  may  not  be  able  to  create  a  corporate  trust 
or  combination  with  itself,  but  its  individual  stockholders  may, 

7.  Addyston  Pipe  and  Steel  Co.  Anti-Trust  Act."— 54  Cent.  L.  Jour. 

V.  United  States,  175  U.  S.  211,  20  349. 

S.  Ct.  96.     See  "A  Remedy  for  the  8.  Adyston  Pipe  and  Steel  Co.  v. 

Trust  Evil."— 12  Yale  L.  Journal,  United  States,  175  U.  S.  211,  20  S. 

117;  "The  Power  of  Congress  Over  Ct.  96. 

Combinations    Affecting    Interstate  9.  Harding  v.   Am.   Glucose   Co., 

Commerce."— 17  Harv.  Law  Review,  182  111.  551.  55  N.  E.  577,  74  Am. 

83;   "Combinations  in  Restraint  of  St.  Rep.  189  and  note. 
Interstate     Commerce     Under     the 

361 


§    323  CONTRACTS    AGAINST    PUBLIC   POLICY.  Ch.    12 

in  controlling  it,  together  with  it,  create  snch  trust  or  combina- 
tion that  will  make  it,  with  them,  alike  guilty,  and  the  combina- 
tion is  illegal.^"  Wherever  there  is  a  combination  to  suppress 
competition,  to  fix  the  price  of  commodities  and  limit  their  pro- 
duction, and  to  restrain  trade,  it  is  a  monopoly  and  can  be  con- 
trolled. And  a  corporate  trust  is  created  where  a  majority  of 
the  stockholders,  in  competing  companies,  consolidate  their  in- 
terests by  conveying  their  property  to  a  corporation,  organized 
for  the  purpose  of  taking  their  property,  when  the  necessary 
consequence  of  the  combination  is  to  control  prices,  limit  pro- 
duction or  suppress  competition  in  such  a  way  as  to  create  a 
monopoly.  ^^ 

Congress  has  endeavored  to  suppress  interstate  monopolies. 
But  when  one  reads  the  opinions  of  the  United  States  Supreme 
Court  in  United  States  v.  Knight  Co.^^  and  Addyston  Pipe  and 
Steel  Co.,^^  he  will  agree  that  the  law  does  not  meet  all  the  dif- 
ficulties of  the  situation,  for  there  is  a  seeming  if  not  a  real  con- 
flict in  the  two  decisions.  Whether  the  Sherman  act^*  has  ex- 
hausted the  powers  of  Congress,  is  a  question  of  which  there 
may  be  difference  of  opinion.  It  is  certain  that  the  anti-trust 
act  does  not  apply  to  contracts  in  restraint  of  trade,  which  in  a 
mere  incidental  way  or  in  some  remote  manner  comes  into  re- 
lation with  or  between  the  source  of  interstate  trafiic.^^  There  is 
a  distinction  betw^een  the  aggregation  of  properties  by  pur- 
chase when  the  seller  no  longer  retains  any  interest  therein, 
and  a  combination  of  owners  and  properties  under  one  man- 
agement where  each  owner's  interest  is  continued  in  the  opera- 
tion. The  first  would  not  be  in  violation  of  the  anti-trust  law ; 
the  second  undoubtedly  would  be.     But  where  the  transaction 

10.  Ford  V.  Milk  Shippers  Asso.,  14.  26  U.  S.  Stat.  209,  Act  of 
155  111.  166,  39  N.  E.  651,  27  L.  R.  July  2,  1890;  Compare  United 
A.  298 ;  National  Lead  Co.  v.  Paint  States  v.  Knight  Co.,  156  U.  S.  1, 
Store,  2  Mo.  App.  723.  15  S.   Ct.  249;   Hopkins  v.  United 

11.  Harding  v.  Am.  Glucose  Co.,  States,  171  U.  S.  578,  19  S.  Ct.  40; 
182  111.  551,  55  N.  E.  577,  74  Am.  Anderson  v.  United  States,  171  U. 
St.  Eep.  189  and  note.  8.  604,  19  S.  Ct.  50. 

12.  156  U.  S.  1,  rS  S.  Ct.  249.  15.  United  States  v.  Knight  Co., 

13.  175  U.  S.  211,  20  S.  Ct.  96.  156  U.  S.  1,  15  S.  Ct.  249. 

362 


Cll.    12  INDUSTRIAL    COMBINATIONS.  §§    323,  324 

is  of  a  mixed  character,  the  seller  accepting  part  cash  and  part 
stock  in  payment  it  is  not  settled  as  to  whether  such  combination 
is  in  violation  of  the  anti-trust  act.  If  the  seller  parts  with  his 
whole  interest  and  agrees  not  to  enter  into  the  business  within 
the  territory  occupied  by  the  combination,  such  agreement  at 
common  law  is  not  void.^^ 

§  324.  Pooling  railroad  business. —  An  agreement  between 
railroad  companies,  by  the  terms  of  which  all  their  roads  are  to 
be  operated,  as  to  through  traffic,  as  if  operated  by  one  division 
of  such  traffic,  and,  where  this  is  not  done,  for  a  division  of  the 
gross  earnings  thereof,  the  obvious  purpose  being  to  suppress 
or  limit  competition,  and  to  establish  rates  without  regard  to 
their  reasonableness,  is  contrary  to  public  policy  and  void.^  A 
railroad  company  is  a  (^^/osj-public  corporation,  and  owes  cer- 
tain duties  to  the  public,  among  wdiich  are  the  duties  to  afford 
reasonable  facilities  for  the  transportation  of  persons  and  prop- 
erty, and  to  charge  only  reasonable  rates  for  such  service.  Any 
contract  by  which  it  disables  itself  from  performing  these 
duties,  or  which  makes  it  to  its  interest  not  to  perform  them 
or  removes  all  incentive  to  their  performance,  is  contrary  to 
public  policy  and  void;  and,  the  obvious  purpose  of  this  con- 
tract being  to  suppress  or  limit  competition  among  the  contract- 
ing parties  in  respect  to  the  traffic  covered  by  the  contract,  and 
to  establish  rates  without  regard  to  the  question  of  their  reason- 
ableness, it  is  contrary  to  public  policy,  and  void.^  So  a  contract 
entered  into  between  competing  common  carriers  for  the  estab- 
lishment and  maintenance  of  freight  rates,  forming  what  is 
known  as  a  ''•pool,"  being  a  combination  for  no  other  purpose 

16.  Davis  V.  Booth   (U.  S.  C.  C.  road  Co.  v.  Closser,   126  Ind.  348, 

A.),  37  Chicago  L.  News,  112,  de-  26  N.  E.  159,  9  L.  R.  A.  754  and 

cided  July  6,  1904.  note,  22  Am.   St.  Rep.   593;    West 

1.  Chicago,  etc.,  K.  R.  v.  Wabash,  Virginia  Trans.  Co.  v.  Pipe  Line 
etc.,  R.  R.,  61  Fed.  993.  Co.,  22  W.  Va.  600,  46  Am.   Rep, 

2.  Gibbs  V.  Gas  Co.,  130  U.  S.  527;  Woodstock  Iron  Co.  v.  Exten- 
396,  9  S.  Ct.  553;  Morris  Run  Coal  sion  Co.,  129  U.  «.  643,  9  S.  Ct. 
Co.  V.  Coal  Co.,  68  Pa,  St.  173,  8  402;  Arnot  v.  Coal  Co.,  68  X.  Y. 
Am.  Rep.  159;  Cleveland,  etc..  Rail-  558,  23  Am.  Rep.  1^0, 

363 


§    324  CONTRACTS    AGAINST    PUBLIC    POLICY.  Ch.    12 

than  that  of  stifling  competition,  and  providing  means  to  ac- 
complish that  purpose,  is  illegal.  Such  a  combination  being 
void,^  any  one  of  the  associated  carriers  has  a  right  to  provide 
by  special  contract  for  a  special  rate  to  a  shipper,  and  such  con- 
tract will  be  upheld  when  no  element  of  partiality,  oppression, 
or  improper  favoritism  entered  into  the  contract.*  But  com- 
peting and  non-connecting  railroads  are  not  authorized  by  the 
commerce  act^  to  make  an  agreement  of  maintenance  of  rates 
and  the  curbing  of  competition.  All  combinations  in  restraint 
of  trade  or  commerce  are  prohibited  by  the  commerce  act, 
whether  they  are  in  form  of  trusts  or  merger  of  corporations  or 
in  any  other  form  whatever.^  These  cases  show  that  the  doc- 
trine of  unlimited  competition  applies  to  railroads;  that  they 
cannot  merge  their  lines  and  interests  in  order  to  keep  prices 
within  certain  prescribed  limits;  that  the  prohibition  of  rail- 
road companies  merging  and  thus  secure  unlimited  competition 
will  produce  the  greatest  good  to  the  public  and  be  no  unreason- 
able injury  to  the  railroads. 

In  the  Northern  Securities  Company  Case,^  the  company  was 
formed  as  an  attempt  to  distinguish  between  an  unincorporated 
pool  and  a  so-called  holding  company.    It  was  argued  that  a  cor- 

3.  Hunter  v.  Pfeifer,  108  Ind.  6.  United  States  v.  Freight  Asso., 
197,  9  N.  E'.  124;  Atcheson  v.  Mai-  166  U.  S.  290,  17  S.  Ct.  540;  United 
Ion,  43  N.  Y.  147,  3  Am.  Rep.  678;  States  v.  Nortiiern  Securities  Co., 
United  States  v.  Freight  Asso.,  166  120  Fed.  Rep.  729;  Northern  Se- 
U.  S.  290,  17  S.  Ct.  540;  Gibbs  v.  curities  Co.  v.  United  States,  36 
Smith,  115  Mass.  592;  Hannah  v.  Chi.  L.  News,  255,  191  U.  S.  555, 
Fife,  27  Mich.  172;  People  v.  Sugar  24  S.  Ct.  119,  48  L.  Ed.  299. 
Refining  Co.,  22  Abb.  N.  Cas.  317,  7.  United  States  v.  Northern  Se- 
121  N.  Y.  582,  18  Am.  St.  Rep.  843;  curities  Co.,  120  Fed.  Rep.  729.  See, 
Cleveland,  etc.,  R.  R.  Co.  v.  Closser,  also,  United  States  v.  Joint  Traffic 
126  Ind.  348,  26  N.  E.  159,  9  L.  R.  Asso.,  171  U.  S.  505,  19  S.  Ct.  125; 
A.  754  and  note,  22  Am.  St.  Rep.  Hopkins  v.  United  States,  171  U.  S. 
593.  578,    19    S.    Ct.    40;    Anderson    v. 

4.  Cleveland  R.  R.  Co.  v.  Closser,  United  States,  171  U.  S.  604,  19  S. 
126  Ind.  348,  26  N.  E.  159,  9  L.  R.  Ct.  50;  Addyston  Pipe  and  Steel 
A.  754  and  note,  22  Am.  St.  Rep.  Co.  v.  United  States,  175  U.  S.  211, 
593.  20  S.  Ct.  96;  Montague  v.  Lov?ry, 

5.  Act  of  July  2,  1890,  26  U.  S.  193  U.  S.  175. 
S.  at  Large,  209. 

3G4 


Ch.    12  INDUSTRIAL    COMBINATIONS.  §    324 

poration,  as  an  individual,  could  own  a  majority  of  the  stock  of 
two  competing  lines,  and  that  such  ownership  of  stock  did  not 
constitute  such  a  direct  and  necessary  relation  to  commerce  as 
to  subject  it  to  Federal  authority.  The  United  States  Circuit 
Court  held  in  this  case  that  consolidation  of  parallel  and  com- 
peting lines  cannot  be  effected  by  the  mere  transfer  of  their 
stock  to  a  new  corporation.  Therefore  the  merger  was  illegal 
and  in  conflict  with  interstate  commerce.  The  question  arises 
whether  their  prohibition  of  such  combinations  is  an  unwise  in- 
terference with  the  right  to  contract;  whether  Congress  should 
so  modify  the  Federal  law  as  to  permit  the  judiciary  to  deter- 
mine whether  a  given  restraint  of  trade  is  reasonable,  and  if  so, 
then  to  uphold  the  traffic. 

The  combinations  or  mergers  hereafter  to  be  made  in  the  light 
of  the  Northern  Securities  case  will  be  combinations  that  do  not 
conflict  with  the  law.  The  owners  of  the  stock  of  one  railroad 
company  may  buy  the  stock  of  a  competing  line,  and  then  there 
can  be  no  competition.  The  law  cannot  make  two  parallel  lines 
compete  where  the  dividends  go  into  the  same  treasury,  any 
more  than  it  can  make  two  merchants  compete  after  the  owner 
of  the  one  store  has  bought  out  the  other.  This  principle  is  il- 
lustrated in  the  Sugar  Trust  Combination  which  was  held  in- 
valid by  the  courts  of  JSTew  York.  Then  the  different  owners 
of  the  constituent  elements  combined  all  the  properties  into  one 
corporation  and  the  anti-trust  law  has  no  application.^ 

The  decisions  of  the  Ohio^  Court  and  the  New  York^"  court 
make  all  of  the  trusts,  namely,  combinations  or  partnerships  of 
corporations,  illegal.  This  had  the  effect  to  dissolve  the  two 
trusts.  But  the  legislatures  of  these  two  States  passed  enabling 
acts,  permitting  competing  corporations  to  combine  under  one 
management,  that  is,  corporations  may  be  formed  to  own  and 

8.  See  Park  v.  Druggists  Asso.,  Ohio  St.  137,  30  N.  E.  279,  15  L.  R. 
175  N.  Y.  1,  67  N.  E.  136,  62  L.  R.        A.  145,  34  Am.  St.  Rep.  541. 

A.  632,  96  Am.  St.  Rep.   578   and  10.  People  v.  Sugar  Refining  Co., 

note.  121  N.  Y.  582,  24  N.  E.  834,  9  L.  R. 

9.  State  V.  Standard  Oil  Co.,  49       A.   33   and  note,    18  Am.   St.   Rep. 

843. 

365 


§    324  CONTRACTS   AGAINST    PUBLIC    POLICY.  Ch.    12 

hold  the  stock  of  other  corporations  without  limit.  In  this  way 
the  stockholders  of  any  number  of  corporations  are  enabled  to 
turn  their  certificates  of  shares  over  to  such  a  stockholding  cor- 
poration and  receive  in  exchange  the  stock  certificates  of  such 
corporation,  which  in  that  way  becomes  the  one  owner  and  con- 
troller of  all  such  corporations.  This  method  is,  in  effect,  the 
same  as  that  by  which  several  corporations  were  formerly  put 
in  control  of  the  same  set  of  outside  trustees  in  order  to  be  un- 
der one  management,  which  was  condemned  as  illegal.  The 
courts  condemned  in  the  States  of  Ohio  and  New  York  the 
trusts,  namely,  all  combinations  or  partnerships  of  competing 
corporations,  and  then  the  legislature  passed  enabling  acts  for 
such  combinations  to  form  and  exist.  The  courts  destroyed  and 
the  legislature  reconstructed  and  revived.  It  is  by  the  acts  of 
the  legislatures  of  Ohio  and  of  New  York  that  the  Standard  Oil 
Company  and  the  Sugar  Eefining  Company  exist. 

Another  phase  of  this  subject  of  merger  was  passed  upon  by 
the  United  States  Supreme  Court  in  The  Northern  Securities 
Co.  V.  United  States,^^  where  there  was  a  combination  or  part- 
nership of  two  interstate  railroad  companies,  the  Great  North- 
ern Railroad  Company  and  the  Northern  Pacific  Railroad  Com- 
pany. The  companies  had  combined  by  a  majority  of  the  share- 
holders, to  turn  over  their  stock  to  the  Northern  Securities  Com- 
pany, a  business  corporation  formed  in  New  Jersey  for  the  sole 
purpose  of  owning  and  controlling  the  stocks  and  securities  of 
other  corporations,  their  share  certificates  being  exchanged  for 
share  certificates  in  such  business  corporation.  The  court  held 
this  merger  illegal  under  the  anti-trust  law^^  of  Congress,  be- 
cause any  combination  which  destroys  or  restricts  free  compe^- 
tition  among  those  engaged  in  interstate  commerce  is  illegal. 
And  it  does  not  change  the  rule  as  to  such  commerce  whether  the 
combination  is  effected  by  the  acts  of  the  stockholders  of  the 

11.  36  Chicago  Leg.  News,  255,  Columbia  L.  Review,  168,  305,  315, 
191  U.  S.  555,  193  U.  S.  197.  13  Yale  L.  Journal,  57,  17  Harv.  L. 

12.  26  U.  S.  St.  at  Large,  209.  Review,  474,  533,  52  Am.  L.  Regis- 
See   "The  Northern  Securities  Com-  ter,  358. 

pany."— 11    Yale   L.    Jour.    387,    3 

366 


Ch.    12  INDUSTKIAL    COMBINATIONS.  §§    324,  325 

several  uniting  corporations  or  whether  it  results  by  the  stock- 
holding corporation  acquiring  a  majority  of  the  stock  of  such 
corporations  ijTadually  and  as  best  it  may,  by  stock  purchasing 
in  open  market,  or  otherwise. 

But  suppose  the  jSTorthern  Securities  Company  had  not  been 
formed  by  the  stockholders  of  the  two  railroad  companies,  but 
by  others,  and  its  directors  had  conceived  and  carried  out  the 
scheme  of  getting  control  of  the  stock  of  the  two  companies  by 
purchase  for  cash,  and  thus  changing  them  from  competitors  to 
allies,  would  the  court  hold  different?  The  question  whether 
the  combination  of  several  competing  corporations  under  one 
stocldiolding  corporation,  without  any  preconceived  and  worked- 
out  scheme  by  their  shareholders,  would  be  illegal  remains  to  be 
decided.  This  phase  of  the  case  opens  up  a  vast  field  for  care- 
fully devised  statutes  and  conservative  court  decisions. 

§  325.  Rebates  to  shipper. —  Common  carriers  may,  within 
the  limits  of  fairness  and  impartiality,  consult  their  own  inter- 
ests.^^ So  a  contract  giving  a  special  rate  to  a  shipper,  and  pro- 
viding for  a  drawback,  is  not  in  itself  illegal  and  void.  To 
have  that  effect  other  elements  must  enter  into  the  contract,  but 
when  such  elements  are  present  in  such  form,  as  to  make  the 
discrimination  unjust  or  oppressive,  the  contract  will  be  illegal. 
Discrimination  without  partiality  is  inoffensive;  partiality  ex- 
ists only  in  cases  where  advantages  are  equal,  and  one  party  is 
unduly  favored  at  the  expense  of  another  who  stands  upon  an 
equal  footing.  And  whether  a  common  carrier  acts  impartially 
or  not  depends  upon  the  circumstances  of  the  particular  case. 
Mere  discrimination  will  not  invalidate  a  contract.  If  a  com- 
mon carrier  makes  a  special  contract  to  repay  part  of  the  sum 
received  from  the  shipper,  he  must  perform  his  part  of  the  con- 
tract, unless  he  overthrows  the  presumption  of  fairness   and 

13.  Louisville,  etc.  R.  R.  Co.  v.  155;    Easton    v.    Railroad    Co.,    32 

Flanagan,    113  Ind.   488,   14  N.  E.  Fed.  Rep.   897;    Nicholson  v.  Rail- 

370,  3  Am.  St.  Rep.  674;   Chicago,  road  Co.,  7  C.  B.,  N.  S.  755. 
etc.,  R.  R.  Co.  V.  Iowa,  94  U.   S. 


367 


§§  325,  326    CONTKACTS  AGAINST  PUBLIC  POLICY.    Ch.  12 

right  bj  countervailing  facts.  The  shipper's  right  to  recover 
rests  upon  the  contract  providing  for  a  rebate." 

§  326.    Monopoly  in  interstate  and  international  trade. — 

Congress  passed  an  act  declaring  all  contracts  void  in  the  form 
of  trust  or  otherv^ise  in  restraint  of  trade  or  commerce  among 
the  States,  or  with  foreign  nations.-^ 

The  regulation  of  commerce  applies  to  the  subjects  of  com- 
merce and  not  to  matters  of  internal  police.  Contracts  to  buy, 
sell,  or  exchange  goods  to  be  transported  among  the  several 
States,  the  transportation  and  its  instrumentalities,  and  articles 
bought,  sold  or  exchanged  for  the  purpose  of  such  transit  among 
the  States,  or  put  in  the  way  of  transit,  may  be  regulated,  be- 
cause they  form  part  of  interstate  commerce.  The  fact  that  an 
article  is  manufactured  for  export  to  another  State  does  not 
of  itself  make  it  an  article  of  interstate  commerce,  and  the  in- 
tent of  the  manufacturer  does  not  determine  the  time  when  the 
article  or  product  passes  from  the  control  of  the  State  and  be- 
longs to  commerce.^  When  a  combination  is  made  for  private 
gain  in  the  manufacture  of  a  commodity,  but  not  through  the 
control  of  interstate  or  foreign  commerce,  the  statute  does  not 
apply.  And  it  does  not  follow  that  an  attempt  to  monopolize, 
or  the  actual  monopoly  of,   a  manufacturer   is   an   attempt, 

14.  Bayles    v.    Railroad    Co.,    13  (Tenn.),    609,    42    Am.    Rep.    684; 

Colo.    181,    22    P.    841;    Erie    and  Hersh  v.  Railroad  Co.,  74  Pa.  St. 

Pacific  Despatch  Co.  v.   Cecil,   112  181;  McDuffee  v.  Railroad  Co.,  52 

111.  185;   Root  V.  Railroad  Co.,  114  N.  H.  430,  13  Am.  Rep.  72;  Garton 

N.  Y.  300,  21  N.  E.  408,  4  L.  R.  A.  v.  Railway  Co.,   1  Best  &  S.   112; 

33  and  note,  11  Am.  St.  Rep.  643  Great  Western  Railway  Co.  v.  Sut- 

and  note;  Spoflford  v.  Railroad  Co.,  ton,  L.  R.  4  H.  L.  226;  Boxendale 

128  Mass.  326 ;  Fitchburg  R.  R.  Co.  v.  Railway  Co.,  5  C.  B.,  N.  S.  336 ; 

V.    Gage,    12    Gray    (Mass.),    393;  Ransome  v.  Railway  Co.,   1  C  B., 

Christie  v.  Railroad  Co.,  94  Mo.  453,  N.  S.  437. 

6  S.  W.  656;   Stewart  v.  Railroad  1.  Act  of  July  2,  1890,  ch.  647, 

Co.,  38  N.  J.  L.  505 ;  Union  Pacific  26  Stat.  209. 

R.  R.  Co.  V.  United  States,  117  U.  2.  Coe  v.  Errol,   116  U.   S.   517, 

S.   355,   6   S.   Ct.   772;    Johnson  v.  525,  6  S.  Ct.  475;  Kidd  v.  Pearson, 

Railroad  Co.,   16  Fla.  623,  26  Am.  128  U.  S.  20,  21,  22,  9  S.  Ct.  6. 
Rep.  731;    Ragan  v.  Aiken,  9  Lea 

368 


Ch.    12  INDUSTRIAL    COMBINATIONS.  §    326 

whether  executory  or  consummated,  to  monopolize  commerce, 
even  though,  in  order  to  dispose  of  the  product,  the  instrument- 
ality of  commerce  is  necessarily  invoked.  Hence,  when  the 
American  Sugar  Refining  Company,  a  corporation  existing  un- 
der the  laws  of  the  State  of  New  Jersey,  being  in  control  of  a 
large  majority  of  the  manufactories  of  refined  sugar  in  the 
United  States,  acquired,  through  the  purchase  of  stock  in  four 
Philadelphia  refineries,  such  disposition  over  those  manufac- 
tories throughout  the  United  States  as  gave  it  a  practical  mo- 
nopoly of  the  business,  it  created  a  monopoly  in  the  manufac- 
ture of  a  necessary  of  life,  which  could  not  be  suppressed  under 
the  statute,^  to  protect  trade  and  commerce  against  unlawful  re- 
straint and  monopolies ;  and  the  acquisition  of  the  Philadelphia 
refineries  by  a  Xew  Jersey  corporation,  and  the  business  of 
sugar  refining  in  Pennsylvania,  bear  no  direct  relation  to  com- 
merce among  the  States  or  with  foreigTi  nations.* 

The  monopoly  and  restraint  denounced  by  the  statute  are  a 
monopoly  in  interstate  and  international  trade  or  commerce, 
and  not  a  monopoly  in  the  manufacture  of  a  necessary  of  life ; 
thus,  this  trust  act  does  not  apply  to  a  company  engaged  in  one 
State  in  the  refining  of  sugar,  where  such  industry  bears  no 
distinct  relation  to  commerce  between  the  States  or  with  foreign 
nations.^ 

But  agreement  as  to  rates  by  competing  railroads  for  the 
transportation  of  articles  of  commerce  between  th.e  States  do 
come  within  and  are  condemned  by  this  act.  The  act  includes 
every  contract,  combination  in  the  form  of  trust,  or  otherwise, 
or  conspiracy  in  restraint  of  trade  or  commerce,  among  the  sev- 
eral States,  or  with  foreigTi  nations.  Hence,  an  agreement  by 
railroads  for  the  purpose  of  mutual  protection  by  establishing 
and  maintaining  reasonable  rates,  rules  and  regulations  on  all 
freight  traffic,  both  through  and  local,  is  void,  as  it  puts  a  re- 

3.  Act  of  July  2,   1890,  ch.  647,        156  U.  S.  1,  15  S.  Ct.  249,  Harlan, 
26  Stat.  209.  J-,  dissenting. 

4.  United  States  v.  Knight   Co.,  5.  United   States  v.   Knight  Co., 

156  U.  S.  1.  15  S.  Ct.  249. 

369 


§    326  CONTEACTS    AGAINST    PUBI>IC    POLICY.  Ch.    12 

straint  upon  commerce  as  described  in  tlie  trust  act;®  therefore 
pooling  arrangements  bj  railroads  are  forbidden.'^  So  a  con- 
tract or  combination  which  imposes  any  restraint,  reasonable  or 
unreasonable,  upon  interstate  commerce  is  unlawful ;  and  it  is 
immaterial  whether  or  not  the  restraint  is  a  fair  and  reasonable 
one  or  whether  it  has  actually  resulted  in  increasing  the  price 
of  the  commodity  dealt  in.^  Where  the  main  object  of  the 
parties  in  making  the  contract  is  merely  to  restrain  competition, 
and  enhance  and  maintain  prices,  the  contract  is  void.^ 

The  object  of  the  Sherman  Anti-Trust  Act  ^*^  was  to  protect 
trade  and  commerce  against  unlawful  restraint  and  monopolies. 
To  accomplish  that  object  Congress  declared  certain  contracts 
illegal.  That  act,  in  effect,  prohibits  the  doing  of  certain  things, 
and  its  prohibitory  clauses  have  been  sustained  in  several  cases 
as  valid  under  the  power  of  Congress  to  regulate  interstate  com- 
merce. ^^ 

Most  great  combinations  from  which  the  people  have  any- 
thing to  fear  are  engaged  in  some  way  in  interstate  commerce. 
The  Constitution  of  the  United  States  gives  Congress  jurisdic- 
tion to  regulate  commerce  among  the  States.  But  Congress 
cannot  say  that  a  particular  article  is  subject  to  interstate 
commerGe  when  it  is  not,  so  as  to  exclude  judicial  inquiry. 
While  Congress  has  power  to  regulate  interstate  commerce,  it 
has  no  power  to  select  the  subjects  and  instrumentalities  which 
it  intends  shall  thereafter  enter  into  commerce  between  the 
States.  In  all  the  cases  up  to  the  present  time,  the  United 
States  Suj)reme  Court  has  held  that  the  scope  of  the  term  com- 

6.  United  States  v.  Freight  Asso.,  10.  Act  ot  July  2,  1890,  ch.  647, 
166  U.  S.  290,  17  S.  Ct.  540.  26  Stat.  209. 

7.  United  States  V.  Freight  Asso.,  11.  United  States  v.  Freight 
166  U.  S.  290,  17  S.  Ct.  540.  Asso.,  1C6  U.  S.  290,  17  S.  Ct.  540; 

8.  United  States  v.  Coal  Dealers'  United  States  v.  Traffic  Asso.,  171 
Asso.,  85  Fed.  Rep.  252;  United  U.  S.  505,  19  S.  Ct.  25;  Addyston 
States  V.  Freight  Asso.,  166  U.  S.  Pipe  and  Steel  Co.  v.  United  States, 
290,  17  S.  Ct.  540.  175  U.  S.  211,  20  S.  Ct.  96;  United 

9.  United  States  v.  Pipe  and  States  v.  Northern  Securities  Co., 
Steel  Co.,  85  Fed.  Rep.  271,  46  L.  R.  120  Fed.  Rep.  721,  191  U.  S.  555, 
A.  122,  175  U.  S.  211,  20  S.  Ct.  96.  193  U.  S.  197,  24  S.  Ct.  119. 

370 


Ch.  12 


INDUSTRIAL    COMBINATIONS. 


§§  326,327 


merce,  as  used  in  the  constitution,  is  to  be  determined  by  the 
court  and  not  by  Congress.^ 


§  327.  Corporate  trusts  and  labor. —  An  antagonism  exists 
between  industrial  combinations  and  labor.  In  the  beginning 
trusts  were  not  cordial  to  labor.  In  the  Sugar  Trust  agreement 
one  of  the  principal  provisions  was  to  furnish  protection  against 
combinations  of  labor,  and  the  attitude  of  labor  against  trusts 
was  apparently  hostile.  The  method  of  guarding  against  the 
advance  of  labor  combinations,  as  set  forth  in  the  Sugar  Trust 
agreement,  was  to  be  able  to  close  a  refinery  in  which  a  strike 
occurred  without  embarrassing  the  production,  as  all  of  the 
other  refineries  in  the  trust  would  continue.  But  this  method 
was  soon  met  by  the  extension  of  the  labor  organization  to  all 
the  refineries,  and  therefore  labor  confederacies  were  completed 
to  meet  the  combination  of  capital.  So,  one  organization  con- 
fronted the  other.  ^ 


12.  Champion  v.  Ames,  188  U.  S. 
321,  23  S.  Ct.  321.  As  to  the  ap- 
plication of  the  Act  of  Congress  of 
1893,  in  enforcing  the  anti-trust  and 
interstate  commerce  laws,  see,  Inter- 


state    Commerce      Commission     v. 
Baird,  194  U.  S.  25. 

1.  See  "Labor  Competition  and 
the  Law." — 19  Law  Quarterly  Re- 
view, 37. 


371 


§    328  CONTRACTS   AGAINST   PUBLIC   POLICY.  Oh.    12 

ARTICLE  III. 

As  TO  Patent  Rights. 

Section  328.  Rights  of  Patentee. 

329.  Owner  of  Different  Patent  Rights  in  Single  Article. 

§  328.  Rights  of  patentee. —  A  patentee  may  not  only  neglect 
and  refuse  to  make  the  patented  article,  but  he  may  refuse  to 
permit  anyone  else  to  do  so,  on  any  terms;  he  may  also  sell  to 
another  the  right  itself,  or  agree  with  him  that  he  will  permit 
no  one  else  to  use  it;  and  to  make  the  agreement  binding  such 
other  person  need  not  agree  to  make  the  patented  article  or  sell 
it,  and  such  a  contract  is  not  void  as  in  restraint  of  trade.  ^ 

Considerations  which  might  obtain,  if  the  agreement  were 
in  regard  to  other  articles,  cannot  be  of  any  weight  in  the  de- 
cision of  a  question  arising  upon  an  agreement  as  to  patented 
articles.  It  is  the  purpose  of  a  patent  to  give  the  inventor  a 
monopoly,  which  is  authorized  by  the  government ;  and,  hence, 
an  agreement  by  a  patentee  to  allow  an  association  and  its  mem- 
bers the  exclusive  use  and  sale  of  inventions  patented  by  him,  is 
valid.^ 

The  very  essence  of  a  patent  is  monopoly,  and  the  law  recog- 
nizes this  in  every  way.  The  argument  that  the  public  is  in- 
jured by  a  course  of  dealing  in  patents  is  founded  on  the  as^ 
sumption  that  it  has  rights  in  such  property,  a  notion  utterly 
repugnant  to  the  true  nature  of  the  monopoly.  No  case  can  be 
found  which  recognizes  such  a  public  right,  and  the  attempt  to 
apply  to  this  the  rules  which  forbid  a  restraint  of  trade  is  with- 
out precedent.^    And  it  is  not  against  public  policy  for  a  party 

to  contract  not  to  contest  the  validity  of  a  patent  right  ■* 

1.  Good.  V.  Deland,  121  N.  Y.  1,  628;  Morse  Machine  Co.  v.  Morse, 
24  N.  E.  15.  103  Mass.  73,  4  Am.  Rep.  513. 

2.  Good  V.  Deland,  121  N.  Y.   1,  3.  Morse  Machine  Co.  v.   Morse, 
24  N.  E.  15.     See,  also,  Kinsman  v.  103  Mass.  73,  4  Am.  Rep.  513. 
Parkhurst,   18   How.    (U.   S.)    289;  4.  Dunham  v.  Bent,  72  Fed.  Rep. 
Billings  V.  Ames,  32  Mo.  265;  Cos-  60. 

tar   V.    Brush,   25    Wend.     (N.   Y.) 

3Y2 


Ch.     12  INDUSTRIAL    COMBINATIO^f 8.  §    329 

§  329.   Owners  of  different  patent  rights  in  a  single  article. 

— Several  owners  of  different  patent  rights  in  a  single  article, 
may,  for  the  purpose  of  putting  their  several  patents  where  they 
can  be  used  together  and  to  the  best  advantage,  fonn  a  corpora- 
tion, to  which  each  owner  gives  the  exclusive  license  to  sell  the 
articles  made  under  the  patents,  taking  as  an  equivalent  for  this 
license  a  part  of  the  capital  stock.  Hence,  an  agreement  among 
these  makers  of  a  commodity,  that,  for  three  years,  they  ^vill  sell 
at  uniform  prices  fixed  at  the  outset,  and  to  be  changed  only  by 
consent  of  a  majority  of  them,  is  not  against  public  policy. 
Such  an  agreement  does  not  provide  to  check  competition  from 
outside,  as  the  parties  have  a  monopoly  by  their  patents,  but 
only  to  restrict  competition  in  price  among  themselves.^ 

And  so,  on  the  same  principle  an  agreement  by  a  patentee 
for  the  purpose  of  selling  the  patent  to  better  advantage,  and  as 
a  part  of  the  transaction  of  sale,  and  for  one  and  the  same  con- 
sideration received  by  him  for  the  patent,  is  valid  by  which  the 
patentee  agrees  to  use  his  best  efforts  to  invent  improvements  in 
the  process  and  to  transfer  them  to  the  vendee,  to  do  no  act 
which  may  injure  the  vendee  or  the  business,  and  at  no  time  to 
aid,  assist  or  encourage  in  any  manner,  any  competition  against 
the  same.^  Such  a  contract  is  not  in  restraint  of  trade,  nor  con- 
trary to  public  policy;  the  patentee  had  a  right  to  contract  to 
render  the  vendee  his  exclusive  services  in  this  respect. 

1.  Plimpton  V.  Goodell,  143  Mass.  also,  Gloucester,  etc.,  Co.  v.  Russia 
365,  9  N.  E.  791;  Compare  Merz  Cement  Co.,  154  Mass.  92,  27  N.  E. 
Capsule  Co.  v.  Capsule  Co.,  67  Fed.  1005,  12  L.  R.  A.  563,  26  Am.  St. 
Rep.  414.  Rep.  214;    Printing,  etc..  Register- 

2.  Morse  Machine  Co.  v.  Morse,  ing  Co.  v.  Sampson,  19  Eq.  462. 
103  Mass.  73,  4  Am.  Rep.  513.     See, 


373 


§  330       CONTRACTS  AGAINST  PUBLIC  POLICY.       Ch.  12 

ARTICLE  IV. 

Parties  in  Pari  Delicto. 

Section  330.  Enforcement  of  Illegal  Contracts. 

331.  Test  of  Illegality  of  Contracts. 

332.  Legality  at  Time  of  Eniorcement. 

§  330.  Enforcement  of  illegal  contracts. —  Where  an  illegal 
contract  is  fully  executed,  the  law  will  not  interfere  at  the  in- 
stance of  either  party  to  undo  that  which  it  was  originally  un- 
lawful to  do.  But  there  is  distinction  between  an  executory  and 
executed  void  contract  to  the  effect  that  while  suits  to  enforce 
executory  contracts  may  always  be  defended  on  the  ground  of 
their  invalidity ;  but  in  respect  to  executed  void  contracts  no  re- 
lief can  be  had  by  either  party.^ 

Courts  will  not  lend  their  aid  to  enforce  performance  of  a 
contract  which  is  contrary  to  public  policy  or  the  law  of  the 
land,  but  will  leave  the  parties  in  the  place  their  own  illegal 
action  has  placed  them.^ 

Wlienever  the  contract  conflicts  with  the  morals  of  the  times 
and  contravenes  an  established  interest  of  society,  it  is  void, 
and  no  right  of  action  can  spring  out  of  an  illegal  contract.'^ 

1.  Morris  v.  Hale,  41  Ala.  510;  Dec.  258;  Compare  Central  Trust 
Craddock  v.  Mortgage  Co.,  88  Ala.  Co.  v.  Railroad  Co.,  23  Fed.  Rep. 
281,  7  So.  148;  Long  v.  Railroad  306;  Wright  v.  Gardner,  98  Ky. 
Co.,  91  Ala.  519,  8  So.  706,  24  Am.  454,  33  S.  W.  622,  35  S.  W.  1116; 
St.  Rep.  931;  Thomas  v.  Railroad  Winchester  Elec.  Light  Co.  v.  Veal, 
Co.,  101  U.  S.  71;  Parish  v.  Web-  145  Ind.  506,  41  N.  E.  334,  44  N.  E. 
ster,  22  N.  Y.  494;  Terry  v.  Eagle  353. 

Lock    Co.,    47    Conn.    141,    29    Am.  3.  Goodrich   v.    Tenney,    144   HI. 

Rep.  674.  422,  33  K.  E.  44,  19  L.  R.  A.  371 

2.  Central  Transp.  Co.  v.  Palace  and  note,  36  Am.  St.  Rep.  459; 
Car  Co.,  139  U.  S.  24,  11  S.  Ct.  478;  Fearnley  v.  De  Mandenville,  5  Col. 
Texas,  etc.,  R.  R.  Co.  v.  Railroad  App.  441,  39  P.  73;  Collins  v.  Blan- 
Co.,  41  La.  Ami.  970,  6  So.  888,  17  tern,  2  Wilson,  34;  Williams  v. 
Am.  St.  Rep.  445 ;  Hope  v.  Associa-  Bagley,  1  H.  L.  200 ;  Poole  v.  Weg- 
tion,  58  N.  J.  L.  627,  34  A.  1070,  55  gins,  3  Ring.,  N.  C.  230;  Insurance 
Am.  St.  Rep.  614;  Hooker  v.  Vande-  Co.  v.  Hull,  51  Ohio  St.  270,  37  N. 
water,  4  Denio  (N.  Y.),  349,  47  Am.  E.  1116,  25  L.  R.  A.  37,  46  Am.  St. 

374 


Cll.     12  INDUSTRIAL    COMBINATIONS.  §§    330,  331 

The  principle  of  public  policy  is  this:  Ex  dolo  malo  non 
oritur  actio,  a  right  of  action  cannot  arise  out  of  fraud.  Xo 
court  will  lend  its  aid  to  a  man  who  bases  his  course  of  action 
upon  an  immoral  or  an  illegal  act^  If  from  the  plaintiff's  oa\ti 
stating  or  otherwise,  the  cause  of  action  appears  to  arise  ex 
turpi  causa,  or  the  violation  of  the  law  of  the  country,  then  the 
court  says  he  has  no  right  to  be  assisted.  It  is  upon  this  ground, 
not  for  the  sake  of  the  defendant,  but  because  the  court  will  not 
lend  its  aid  to  such  a  plaintiff.  So,  if  the  plaintiff  and  defendant 
were  to  change  sides,  and  the  defendant  were  to  bring  his  action 
against  the  plaintiff,  the  latter  would  have  the  advantage,  for 
Avhere  botli  are  equally  at  fault,  potior  est  conditio  defendentis, 
better  is  the  condition  of  the  defendant  than  that  of  the  plain- 
tiff. There  are  exceptions  to  the  general  rule  where  the  parties 
are  not  in  pari  delicto*  and  the  less  guilty  is  permitted  to  main- 
tain his  suit  where  the  public  interests  will  be  thereby  ad- 
vanced.^ And  the  parties  may  adjust  their  claims,  divide  the 
property,  and  the  court  will  then  enforce  partition;®  or  they 
may  place  each  other  in  statu  quo;''  and  if  one  party  is  ignorant 
of  the  illegality  but  the  otlicr  is  not,  the  former  may  enforce  it 
against  the  latter.* 

§  331.  Test  of  illegality  of  contract. —  The  court  will  not 
assist  either  party  to  an  illegal  or  void  contract  to  enforce  it 
against  the  other,  or  to  rec<jver  what  he  has  parted  with  under 
the  contract;  and  the  test  in  determining  when  it  applies  to  a 
plaintiff  is  whether  his  cause  of  action  is  founded  on,  or  arises 
out  of,  the  illegal  contract.     If  the  action  is  of  that  character, 

Rep.  571;  Sykes  v.  Beaden,  11  Ch.  18    Ves.    o7D;    Reyiiell    v.    Spiye,   8 

Div.   195;    Mexican  Inter.   Banking  Hare,  222. 

Co.   V.   Lichtenstein,   10'  Utah,   3;;8,  6.  Norton  v.  Blinn,  39   Ohio  St. 

37  P.  574.  145;   De  Leon  v.  Frevino,  49  Tex. 

4.  Savings  Bank  v.  Burnes,  104  88,  30  Am.  Rep.  101  and  note; 
Cal.  473,  38  P.  102;  Bell  v.  Camp-  Rhea  v.  White,  7  Lea  (Tenn.),  628; 
bell,  123  Mo.  1,  25  S.  W.  359,  45  Compare  Northrup  v.  Phillips,  99 
Am.  St.  Rep.  505.  III.  449. 

5.  White     V.     Bank,     22     Pick.  7.  Lea  v.  Cassan,  61  Ala.  312. 
(Mass.)    186;    Osborne  v.   Williams  8.  Wright  v.  Crabbs,  78  Ind.  487. 

375 


§§    331,  332  CONTRACTS    AGAINST   PUBLIC    POLICY.  Cb.    12 

whether  it  appear  from  his  own  stating,  or  is  shown  by  way  of 
defense,  he  must  fail;  otherwise,  not.^  If  the  plaintiff  cannot 
open  his  case  without  showing  that  he  has  broken  the  law,  the 
court  will  not  assist  him.^ 

While  the  general  rule  is  that  a  demand  on  an  illegal  trans^ 
action  will  be  enforced,  if  the  plaintiff  can  make  out  his  case 
without  disclosing  the  illegality,^  yet  that  rule  has  not  been  in- 
variably applied  to  contracts,  where  the  illegal  consideration  is 
a  violation  of  statute  or  an  immorality  detrimental  to  the  public. 
In  such  cases,  the  courts  may  overlook  the  parties,  and  consider 
the  question  one  of  public  policy.*  The  maxim,  nemo  allegans 
turpitudinem  suam,  audiendus  est,  no  one  alleging  his  own 
turpitude  is  to  be  heard,  is  inflexible,  as  between  the  parties,  but 
may  yield  to  considerations  of  public  policy  and  the  duty  of 
preventing  the  consummation  of  a  fraudulent  and  illegal  pur- 
pose. ISTor  is  the  rule  universal  in  its  application  to  cases  where 
the  consideration  is  violative  of  a  statute.^ 

§  332,  Legality  at  time  of  enforcement. —  As  has  already 
been  stated,  the  court  will  not  lend  its  aid  to  enforce  the  contract 
if,  at  the  time  its  aid  is  sought,  the  contract  is  contrary  to  public 
policy.  If,  however,  at  the  time  when  the  aid  of  the  court  is 
sought  to  enforce  the  terms  of  an  existing  contract,  the  public 
interests  do  not  demand  that  the  court  should  refuse  to  aid  in 
enforcing  the  contract  according  to  its  terms,  the  court  will  not 
be  justified  in  refusing  its  aid  simply  because  at  some  previous 
time,  such  aid  would  have  been  refused  if  then  demanded.^ 

1.  Nester  v.  Brewing  Co.,  161  Pa.  4.  Irvin  v.  Irvin,  169  Pa.  St. 
St.  473,  29  A.  102,  24  L.  R.  A.  247,        529,  32  A.  445,  29  L.  R.  A.  292. 

41  Am.  St.  Rep.  894.  5.  Irvin    v.    Irvin,    169    Pa.    St. 

2.  Swan  v.  Scott,   11   Serg.  &  R.  529,  32  A.  445,  29  L.  R.  A.  292. 
(Pa.)    164;  Morris  Run  Coal  Co.  v.  6.  Hartford     Fire     Ins.     Co.     v. 
Coal  Co.,  68  Pa.  St.  173,  8  Am.  Rep.  Railroad  Co.,  62  Fed.  Rep.  904.  See, 
159;     Holman    v.    Johnson,    Cowp.  also,    Ewell    v.    Daggs,    108    U.    S. 
343.  143,  2  S.  Ct.  40B. 

3.  Evans  v.  Dravo,  24  Pa.  St. 
62,  62  Am.  Dee.  359 ;  Swan  v.  Scott, 
11  Serg.  &  R.   (Pa.)   155. 

376 


Ch.    12  INDUSTRIAL    COMBINATIONS.  §    332 

To  sustain  the  objection  to  the  enforcement  of  such  a  con- 
tract, it  must  appear  that  the  contract  is  adverse  to  the  existing 
public  policy  of  the  State ;  for,  unless  that  be  true,  the  court  is 
not  justified  in  refusing  its  aid  for  the  enforcement  of  a  con- 
tract which  is  good  between  the  parties  thereto.  The  inquiry  is, 
what  is  the  public  policy  of  the  State  where  the  action  lies,  when 
enforcement  is  sought  V 

7.  Hartford     Fire     Ins.     Co.     v. 
Railroad  Co.,  62  Fed.  Rep.  904. 


377 


CHAPTER  XIII. 

Trades   Unions. 


ARTICLE  I. 

Geneeal.  Statement. 

Section  333.  Organization  of  Workingmen. 

334.  Trades  Unions  are  Lawful  Combinations. 

§  333-  Organization  of  workingmen. —  The  organization  of 
■workingmen  is  legal  and,  of  course,  not  against  public  policy. 
The  general  rule  is  that  men  in  all  vocations  may  unite  to 
achieve  that  which  a  single  person  cannot  in  his  individual 
capacity.  So  partnerships  are  formed  and  corporations  created 
to  subserve  the  necessities  of  business  and  all  industrial  pursuits. 
So  trades  unions  is  a  present  need  that  the  laborer  may  sell  his 
labor  for  a  reasonable  compensation.  Public  policy  and  the  inter- 
est of  society  favor  the  utmost  freedom  in  the  citizen  to  pursue 
his  lawful  trade  or  calling.  But  the  right  of  men  to  leave  their 
employment,  where  no  contract  is  broken,  is  as  perfect  and  com- 
plete as  is  the  correlative  right  of  all  men  to  seek  employment 
wherever  they  can  find  it,  without  let  or  hindrance,  whether 
belonging  to  labor  organizations  or  not.  These  are  common 
rights,,  secured  by  the  constitution.^ 

§  334-  Trades  unions  are  lawful  combinations. —  The  au- 
thorities in  America  and  England  hold  that  trades  unions,  in 
the  ordinary  acceptation  of  that  term,  are  not  unlawful  combi- 

1.  See  "Do  Trades  Unions  Limit       and  Organized  Labor." — 34  Chicago 
Output?"— 17      Political      Science       Legal  News,  327. 
Quarterly,    369 ;    "  The    Injunction 

378 


Ch.    13  TRAJ)E    UNIONS.  §    334 

nations,  so  long  as  they  do  not  resort  to  acts  of  violence,  or  en- 
deavor to  accomplish  some  end  that  is  contrary  to  public  policy. 
It  is  then  not  illegal,  per  se,  for  a  union  to  adopt  and  endeavor 
to  mainain  a  scale  of  wages,  or  to  endeavor  to  limit  and  regulate 
the  employment  of  apprentices.^ 

The  later  English  authorities  concede  that  members  of  trades 
unions  binding  themselves  not  to  work  except  under  certain 
conditions,  and  to  support  one  another  in  the  event  of  being 
thrown  out  of  emplojTiient  in  carrying  out  the  views  of  the 
majority,  do  not  bring  themselves  within  the  criminal  law  or 
make  contracts  against  public  policy.^  And  so,  the  later  Ameri- 
can cases,  where  not  against  statute,  hold  that  trades  unions,  in 
the  ordinary  acceptation  of  the  term,  are  not  of  themselves  un- 
lawful combinations.  So  a  number  of  persons  may  associate 
themselves  together,  and  agree  that  they  will  not  work  for  or 
deal  with  certain  men,  or  classes  of  men,  or  work  under  a  cer- 
tain price,  or  without  certain  conditions.^ 

But  if  the  purpose  of  an  organization  or  combination  of 
workingmen  be  to  hamper  or  to  restrict  the  right  to  contract, 
and  through  contracts  or  arrangements  with  employers  to  coerce 
other  workingmen  to  become  members  of  such  union  and  to  come 
under  its  rules  and  conditions,  under  a  penalty  of  the  loss  of 
their  position  and  of  deprivation  of  employment,  the  purpose  of 
such  organization  is  unlawful,  because  it  is  in  conflict  with  that 
principle  of  public  policy  which  prohibits  monopolies  and  ex- 
clusive privileges,  for  it  tends  to  deprive  the  public  of  the  ser- 
vices of  men  in  useful  employments  and  occupations.* 

1.  Longshore  Printing  Co.  v.  Am.  St.  Rep.  496.  See,  also,  State 
Howell,  26  Oreg.  527,  38  P.  547,  28  v.  Glidden,  55  Conn.  46,  8  A.  890,  3 
L.  R.  A.  464  and  note,  46  Am.  St.  Am.  St.  Rep.  23;  State  v.  Stewart, 
Rep.  640.  59   Vt.   273,  9   A.  559,  59  Am.   St. 

2.  Hormby  v.  Clark,  L.  R.  2  Q.  Rep.  710  and  note;  State  v.  Dyer, 
B.  151;  Farrar  v.  Close,  L.  R.  4  67  Vt.  690,  32  A.  119;  Murdock  v. 
Q.  B.  602.  Walker,  152  Pa.  St.  595,  25  A.  492, 

3.  Carew  v.  Rutherford,  106  34  Am.  St.  Rep.  678;  Barr  v. 
Mass.  14,  8  Am.  Rep.  287.  Trades  Coimcil,  53  N.  J.  Eq.  101,  30 

4.  Curran  V.  Galen,  152  N.  Y.  33,  A.  881;  Sherry  v.  Perkins,  147 
39,  46  N.  E.  297.  37  L.  R.  A.  802,  57  Mass.  212,  17  N.  E.  307,  9  Am.  St. 

379 


§    334  CONTRACTS    AGAINST    PUBLIC    POLICY.  Ch..    13 

In  Canada  a  trade  union  is  "sncli  combination,  whetlier  tem- 
porary or  permanent,  for  regulating  the  relations  between  work- 
men and  masters,  or  between  workmen  and  workmen,  or  be^ 
tween  masters  and  masters,  or  for  imposing  restrictive  condi- 
tions on  tlie  conduct  of  any  trade  or  business,  as  would,  if  this 
act  had  not  passed,  have  been  deemed  to  have  been  an  unlawful 
combination  by  reason  of  some  one  or  more  of  its  purposes  being 
in  restraint  of  trade." 

In  England,  prior  to  the  Trade  Union  Act  of  1871,  strikes 
were  illegal.  But  since  the  Trade  Union  Act  of  1875  ^  strikes 
are  legal.  ^ 

iJ^otwithstanding  the  legality  of  trade  unions,  they  have  no 
right  to  inflict  injury  on  others  of  the  community  with  im- 
punity. And  if  the  organization  has  no  legal  entity,  it  is  not 
without  the  control  of  the  law;  all  of  the  members  must  be 
reached  under  the  law.  Thus,  where  A  brings  an  action  against 
the  ofiicers  of  a  trade  union,  alleging  that  the  defendants  and 
the  members  of  the  union  had  illegally  combined  together  to 
injure  him,  and  had  prevented  him  from  obtaining  employ- 
ment as  a  stonecutter,  a  good  cause  of  action  is  shown.' 

This  is  the  law  of  England,^  and  in  the  United  States.^  So, 
there  can  be  no  encouragement  given  to  trade  unions  to  evade  in- 
corporation and  thereby  become  a  legal  entity,  for  such  organ- 
ized body,  though  having  no  legal  existence  as  a  body,  must 
come  under  the  law,  and  all  of  its  members  reached  by  legal 
process. 

Rep.  689;  Vegelahn  v.  Guntner,  167  Lumley  v.  Gye,  2  E.  &  B.  216;  Tern- 
Mass.  92,  44  N.  E.  1077,  35  L.  R.  A.  perton  v.  Russell,  1  Q.  B.  715; 
722,  37  Am.  St.  Rep.  443.  Lyons    v.    Wilkins     (1896),    1    Ch. 

5.  38  and  39  Vict.  c.  86.  811. 

6.  Temperton  v.  Russell,  1  Q.  B.  8.  Taff  Vale  Railroad  Co.  v.  The 
Div.  733;  Lyons  V.  Wilkins   (1896),  Amalgamated    Society    of    Railway 
1     Ch.     828;     Quinn     v.     Leatham  Servants,  70  L.  J.,  K.  B.  905. 
(1891),  A.  C.  495.  9.  Beattie  v.  Callanan,  81  N.  Y. 

7.  Perrault    v.     Gauthier     (Can-  S.  413,  82  App.  Div.  7. 
ada),  28  S.  C.  R.  211.     See,  also, 


380 


Ch.    13  TRADE    UNIONS.  §    335 

ARTICLE  II. 

Contractual  Relations. 

Section  335.  Liability  of  Trades  Unions. 

336.  Picketing. 

337.  Blacklisting. 

338.  The  Coal  Stnke  Commission. 

§  335.  Liability  of  trades  unions. — The  liability  of  trades 
unions  has  been  settled  in  England,  and  the  rule  will  be  and  is 
followed  in  the  United  States.  The  English  decision  holds 
these  principles:  1.  The  test  for  liability  of  damages  is 
whether  the  injury  was  the  natural  incident  or  outgrowth  of 
the  existing  relations  of  the  party  doing  the  injury  to  the  con- 
dition out  of  which  tlie  act  arose.  2.  A  malicious  intent  to  in- 
jure is  not  required  to  make  the  party  civilly  liable.  3.  The 
liability  rests  upon  the  whole  body  of  the  organization  which 
by  its  authorized  agents  and  leaders  produced  the  damage. 
4.  The  damage  may  be  collected  from  the  general  fund  of  the 
association.  5.  The  members  of  the  organization  are  joint 
tort  feasors.^  This  clearly  shows  the  liability  of  those  organ- 
izations which  cause  a  strike  and  interfere  in  the  contractual 
relations  of  other  parties. 

It  is  also  illegal  for  trade  unions  to  issue  lists  of  unfair  firms 
with  a  view  of  preventing  men  from  working  for  such  firms  or 
preventing  other  people  from  trading  with  them.  It  is  illegal 
for  trade  unions  to  strike  in  order  to  compel  men  to  join  them. 
It  is  also  illegal  for  trade  unions  during  a  dispute  to  peacefully 
persuade  men  not  to  enter  the  employ  of  a  firm  in  conflict  with 
trade  unions.^     Yet  it  is  legal  for  employers  to  refrain  from 

1.  Taft  Vale  Railroad  Co.  v.  The  2.  Lyons   v.    Wilkins    (1896),    1 

Amalgamated    Society    of    Railway  Ch.  828,  68  L.  J.  Ch.  146 ;   (1899),  1 

Servants,  70  L.  J.,  K.  B.  905,  over-  Ch.  255. 

ruling  S.  C.    (1901),  A.  C.  426,  S.  3.  Reid  v.  Friendly  Soc.  of  Opera- 

C.   (1901),  1  K.  B.  170,  S.  C.  70  L.  tive   Stonemasons,   Tl   L.   J.,  K.   B. 

J.  K.  B.  219.  634;    (1902),  2  K.  B.  88. 


381 


§    335  CONTRACTS   AGAINST   PUBLIC    POLICY.  Cb.    13 

trading  with  firms  in  order  to  compel  the  latter  to  join  their 
combinations.'* 

So  tbe  law  is  that  if  a  trade  union,  or  similar  combination, 
commits  a  wrong  as  set  fortb  by  the  English  courts,  the  person 
injured  by  such  wTong  can  maintain  an  action  against  them  as 
he  would  against  other  joint  tort  feasors ;  and  so  far  as  the  form 
of  the  action  is  concerned,  it  may  be  brought  against  either  rep- 
resentative defendants,  who  fairly  represent  the  whole  body, 
or  they  may  be  sued  by  their  collective  name,  that  is,  in  the 
name  of  the  union.^ 

It  is  a  violation  of  right  to  interfere  with  contractual  relations 
recognized  by  law  if  there  be  no  sufficient  justification  for  the 
interference.  If  the  trade  union  is  justified  in  interfering 
there  arises  no  liability.^  So  where  a  labor  organization  malic- 
iously induced  persons  contracting  with  employers  to  violate 
their  contract,  the  union  is  civilly  liable  in  damages  to  the  in- 
jured employer.'^  So  if  a  third  party  interferes  without  suf- 
ficient ground  and  cause  a  workman  to  be  discharged  the  third 
party  is  liable  in  damages.  Thus,  where  an  employe  of  a  cor- 
poration under  a  contract,  terminable  at  the  will  of  either 
party  at  any  time,  was  discharged  by  his  employer  at  the  instance 
of  a  guaranty  company  so  as  to  compel  him  to  surrender  and 
release  a  cause  of  action  which  he  claimed  against  his  employer, 
and  for  the  satisfaction  of  which  the  guaranty  company  was 
liable  as  an  insurer,  and  the  employe  was  thereby  damaged, 
the  guaranty  company,  or  the  third  party  interfering,  is  liable 
in  damages  to  the  employe.^ 

4.  Mogul   Steamship   Co.   v.   Mc-  C.  510,  50  W.  R.  139;  National  Pro- 
Grregor,  23  Q.  B.  Div.  598.  tection   Asso.   v.   Cummins,    170  N. 

5.  Giblan  v.  Laborers'  Union,  18  Y.  315,  63  N.  E.  369,  58  L.  R.  A. 
L.  Times  Rep.  p.  500   (1903),  2  K.  135,  88  Am.  St.  Rep.  648. 

B.    600;    Glamorgan    Coal    Co.    v.  7.  Beattie  v.  Callanan,  81  N.  Y. 

South     Wales    Miners'    Federation  S.  412,  82  App.  Div.  7. 

(1903),  1  K.  B.  118.    See,  also.  Cur-  8.  London  Guaranty  and  Accident 

ran  v.  Galon,  152  N.  Y.  33,  46  N.  E.  Co.  v.  Horn,  206  HI.  493,  69  N.  E. 

297, 37  L.  R.  A.  502,  57  Am.  St.  Rep.  526,  99  Am.  St.  Rep.  185;   Perkins 

496;  Flood  V.  Allen  (1898),  A.  C.  1.  v.  Pendleton,  90  Me.  166,  38  A.  96, 

6.  Quinn  v.  Leatham   (1901),  A.  60    Am.    St.    Rep.   252.      See,   also, 

382 


Ch.    13  TRADE    UNIONS.  §    335 

In  the  United  States,  injunctions  have  been  granted  against 
the  acts  of  labor  organizations  in  many  cases.'  In  some  States 
this  right  of  action  is  governed  by  statute.  Thus,  in  New  York 
under  the  code,  when  an  incorporated  organization  is  composed 
of  seven  or  more  persons,  action  can  be  brought  again  it 
in  the  name  of  the  president  or  treasurer.  An  action  was 
brought  for  conspiracy  resulting  in  plaintiff's  discharge  from 
employment.  The  defendant  set  up  an  agreement  between  the 
labor  association  and  the  employers'  association  that  no  em- 
ploye should  work  more  than  four  weeks  without  becoming  a 
members  of  the  union.  This  defense  was  held  bad  on  the  ground 
that  such  an  agreement  was  illegal.  This  case  clearly  sustains 
the  liability  of  the  unincorporated  company  to  an  action  if  it 
has  committed  wrong.^"  But  if  no  wrongful  act  of  the  organ- 
ization has  been  committed,  then  no  action  will  lie.^^ 

This  doctrine  is  upheld  when,  it  seems,  no  statute  controls, 
and  the  organization  is  not  incorporated.^^  The  question  to  be 
settled  is,  is  the  act  wrongful  ?  if  so,  a  right  of  action  exists 
though  the  organization  of  laborers  is  unincorporated.^^  A  trade 
union  can  be  sued  under  its  name,  though  it  is  neither  a  corpora- 
tion nor  an  individual ;  this  is  the  undoubted  rule  in  England 
and  in  the  United  States,  when  such  organization  has  committed 
a  wrongful  act. 

Doremus  v.  Hennessey,  176  111.  608,  74    Am.    St.    Rep.    421 ;    Longshore 

52  N.  E.  924,  54  N.  E.  524,  68  Am.  Printing  and   Pub.    Co.   v.   Howell 

St.    Rep.    203;    Compare    Allen    v.  26  Oreg.  527,  38  P.  547,  28  L.  R.  A 

Flood     (1898),    A.    C.     1;     Mogul  464,  46  Am.  St.  Rep.  640. 

Steamship  Co.  v.  McGregor,  21   Q.  10.  Cur  ran  v.  Galen,  152  N".  Y. 

B.  D.  544;  Huttley  v.  Simmons,  67  33,  46  N.  E.  297,  37  L.  R.  A.  802 

Q.   B.   D.   213;    Quinn  v.   Leatham  57  Am.  St.  Rep.  496. 

(1901),  A.  C.  495.    See  The  Author-  11.  Wunchv.Shankhind,  59  App 

ity  of  Allen  v.  Flood,  1  Mich.  Law  Div.  482,  69  N.  Y.  S.  349. 

Review,  28.  12.  Parker    v.    Bricklayers'    Un 

9.  Arthur  v.  Oakes,'4  Inter.  Com.  ion,  21  Ohio  L.  Jour.  223,  10  Ohio 

Rep.  744,  11  C.  C.  A.  299,  24  U.  S.  Dec.  Reprint,  458;  Moores  v.  Brick 

App.  239,  63  Fed.  liep.  310,  25  L.  layers'  Union,  23  Ohio  L.  Jour.  48 

R.  A.  414;  Beck  v.  Railway  Team-  10  Ohio  Dec.  Reprint,  665. 

sters'    Protect.    Union,     118    Mich.  13.  Barr  v.  Essex  Trades  Coun- 

497.  77  N.  W.  13,  42  L.  R.  A.  407,  cil,  53  N.  J.  Eq.  101,  30  A.  881. 

383 


§  335       CONTRACTS  AGAINST  PUBLIC  POLICY.       Ch.  13 

A  combiiiation  among  traders  to  offer  such  facilities  to  cus- 
tomers as  will  attract  the  whole  trade  to  themselves  and  ruin 
their  rivals  is  not  actionable,  because  every  trader  is  entitled 
not  only  to  seek  his  own  advantage  by  trading  upon  terms  which 
will  injure  his  rivals,  but  he  may  also  combine  with  others  for 
the  same  purpose.  The  right  of  his  rivals  to  trade  is  not  an  abso- 
lute, but  a  qualified  right — a  right  conditioned  by  the  like  right 
to  all  others,  and  a  right,  therefore,  to  trade  subject  to  competi- 
tion." So,  also,  every  workman  is  entitled  to  dispose  of  his  labor 
on  his  own  terms,  but  that  right  is  conditioned  by  the  right  of 
every  other  workman  to  do  the  same.  Each  laborer  is  at  liberty  to 
decide  for  himself  whether  he  will  or  will  not  work  along  with 
another  individual  in  the  same  employment ;  and  if  all  the  work- 
men but  one  determine  that  they  will  not  continue  their  labor 
in  company  with  that  one,  they  may  inform  their  employer  of 
their  decision  without  incurring  liability.^^  In  Allen  v.  Flood,^' 
Allen,  a  walking  delegate,  informed  his  employers  that  unless 
they  discharged  certain  persons  his  associates  would  quit  work. 
It  was  held  that  there  had  been,  in  fact,  no'  threat  made  by  the 
delegate,  but  simply  a  statement  of  what  the  men  had  resolved 
to  do;  the  delegate  neither  uttered  nor  carried  into  effect  any 
threat  at  all ;  he  simply  warned  the  employers  of  the  discharged 
men,  of  what  his  men  themselves,  without  his  persuasion  or  in- 
fluence, had  determined  to  do,  and  hence  the  delegate  had  incur- 
red no  liability. 

In  Quinn  v.  Leathem,^^  it  was  held  that  the  combination  of 
workmen  is  perfectly  legitimate  so  long  as  it  does  not  take  the 
form  of  an  attack  on  the  right  of  the  individual  workman.  Each 
party,  the  individual  workman  on  the  one  side,  and  the  combina- 
tion of  workmen  on  the  other,  are  entitled  to  the  enjoyment  of 
their  rights  to  dispose  of  their  labor  as  they  please,  subject  only 
to  the  exercise  of  this  right  by  the  opposite  party.  But  when  the 
combination  interferes  with  the  individual  workman  by  threats 

14.  Mogul  Steamship  Co.  v.  Mc-  (1903),  2  K.  B.  600,  18  L.  Times 
Gregor    (1892),  A.  C.  2^,  23  Q.  B.        Rep.  500. 

D.  Q.  25.  16.    (1898),   A.   C.    1. 

15.  Giblan    v.    Laborers'    Union,  17.    (1901),  A.  C.  495. 

384 


Ch.  13  TEADE  UNIONS.  §§  335,  336 

■uttered  by  the  employer,  then  tliis  right  of  the  individual  work- 
man is  invaded,  and  if  damages  follow  he  has  a  right  of  action. 
In  Giblan  v.  Laborers'  Union,^*  two  union  officials  bad  com- 
bined to  prevent  a  workman  obtaining  employment  by  threaten- 
ing to  call  out  the  other  workmen  if  he  was  engaged.  This  work- 
man, plaintiff  in  the  case,  had  been  a  local  treasurer  of  the 
union,  and  was  indebted  in  respect  to  union  funds,  and  the  ob- 
ject was  to  make  him  pay  this  debt.  The  court  held  that  the 
aggressive  use  of  power  of  the  trade  union  officials  was  a  cause 
of  action  for  interference  with  the  plaintiff's  right  to  dispose  of 
his  own  labor  as  he  pleased.  The  action  lay  for  the  unjustifi- 
able interference  with  a  man's  liberty  of  action,  and  the  defend- 
ants were  held  liable.  So  the  indivdidual  workman's  rights  can 
be  protected. 

§  336.  Picketing. —  In  case  of  a  strike,  it  is  the  practice  of 
the  union  to  send  out  pickets  to  influence  non-union  laborers 
from  entering  the  employment  of  the  business  thus  under  con- 
sideration. It  is  illegal  to  picket  by  labor  unions,  to  intimidate 
workmen  who  have  taken  the  places  of  strikers.^  A  laborer  has 
the  undoubted  right  to  leave  his  employment  on  a  strike,  but  he 
must  flo  so  in  a  peaceful  manner,  and  not  in  any  manner  injure 
the  business  of  his  employer  by  intimidating  others  so  that  they 
dare  not  take  his  place.^  Every  act  causing  an  obstruction  to 
another,  which  is  done  not  in  the  exercise  of  the  actor's  own 

18.    (1903),  2  K.   B.   600,   18   L.  putes."— 40   Canada  L.   Jour.   410; 

Times  Rep.  500.     See,  "  Do  Trade  "  Liability    of    Trade    Unions    and 

Unions  Limit  Output?"— 17  Politi-  Their  Members."— 28  Nat.  Cor.  Re- 

cal  Science  Quarterly,  369;  "Labor  porter,  620,  621;  "Ihe  Relation  of 

Competition     and     tJie     Law." — 19  Labor  and  Capital,  Organization  of 

Law    Quarterly    Rev.    37 ;     "  Some  Employers  and  Employees,  29  Nat. 

English  Cases  on  Trade  and  Labor  Cor.  Rep.  46,  47,  48. 

Disputes," — 42  Am.   Law  Register,  1.  Union  Pac.  R.  R.  Co.  v.  Ruef, 

N.  S.  125;  "Government  by  Injunc-  120    Fed.    Rep.    102;    Vegelahn    v. 

tion." — 11  Am.  Lawyer,  5;   "  Inci-  Guntner,    167   Mass.   92,   44   N.   E. 

dental  Relief  in  Federal  Injunction  1077,  25  L.  R.  A.  722,  57  Am.  St 

Cases,"— 23     Law     Register,     150;  Rep.   443. 

"  Trade    and    Labor    Unions,    Just  2.  Wabash  R.  R.  Co.  v.  Hanna- 

Cause   and   Excuse    in   Labor    Dis-  ban,  121  Fed.  Rep.  563. 

385 


§    336  CONTKACTS    AGAINST   PUBLIC    POLICY.  Ch.    13 

right  but  for  the  purpose  of  obstruction,  would,  if  damages 
should  be  caused  thereby  to  the  party  obstructed,  be  a  violation 
of  the  prohibition  of  the  law  against  interference  with  the  full- 
est right  of  every  person  to  dispose  of  his  labor  or  capital  accord- 
ing to  his  own  will,^  and  is  therefore  illegal.  ISTor  does  it  mat- 
ter whether  the  wrongdoer  effects  his  object  by  persuasion  or  by 
false  representation.  The  courts  look  through  the  instrumen- 
tality or  means  used  to  the  wrong  perpetrated  with  the  malic- 
ious intent,  and  base  the  right  of  action  upon  that.^  An  agree- 
ment to  employ  none  but  union  laborers  is  against  public  pol- 
icy and  in  violation  of  common  right,  and  tends  to  create  a  mon- 
opoly and  cannot  be  enforced.^ 

Picketing  has  been  practiced  in  cases  of  strikes,  whereby 
members  of  the  union  are  stationed  around  the  place  of  bus- 
iness to  keep  non-union  men  from  engaging  to  work  for  the 
proprietors  who  have  been  placed  on  the  unfair  list.  Whenever 
this  picketing,  the  number  of  pickets  being  great  or  small,  is 
sufficient  in  itself  to  intimidate  men  from  entering  the  employ- 
ment of  the  proprietors  thus  listed,  then  such  picketing  is  un- 
lawful, and  intereferes  with  the  contractual  relations  of  em- 
ployer and  employe.  Peaceable  persuasion,  without  intimida- 
tion, is  legal.®  Agreements  whereby  employers  are  required 
to  unionize  their  business  against  their  will,  are  against  public 
policy  and  against  the  spirit  of  our  institutions,^  and  the  em- 
ployers will  be  protected. 

3.  Plant  V.  Wood,  170  Mass.  492,  Mass.  92,  44  N.  E.  1077,  25  L.  R. 
57  N.  E.  1011,  51  L.  R.  A.  339,  79  A.  722,  57  Am.  St.  Rep.  443;  Union 
Am.  St.  Rep.  330.  Pac.   R.   R.    Co.   v.   Ruef,    120  Fed. 

4.  iiarr  v.  Trades  Council,  53  Rep.  102;  Beaton  v.  Tarrant,  102 
N.  J.  Eq.  101,  30  A.  881.  See,  also.  111.  App.  124;  American  Steel  Co. 
Beck  V.  Teamsters'  Protective  Un-  v.  Wire  Drawers'  Union,  90  Fed. 
ion,  118  Mich.  49,  77  N.  W.  13,  42  Rep.  598. 

L.  R.  A.  407,  74  Am.  St.  Rep.  421;  7.  Curran   v.    Galen,    152    N.   Y. 

Shoe  Co.  V.  Saxey,  r31  Mo.  213,  32  33,  46  N.  E.  297,  57  Am.  St.  Rep. 

S.  W.   1106,  52  Am.  St.  Rep.  622;  496;   Lucke  v.  Clothing  Cutters,  77 

Flaccus  V.  Smith,  199  Pa.  St.  128,  Md.   396,   26  A.   505,    19   L.  R.   A. 

48  A.  894,  85  Am.  St.  Rep.  779.  408,  39  Am.  St.  Rep.  421;  Mills  v. 

5.  Curran  v.  Galen,  152  N.  Y.  33,  U.  S.  Printing  Co.,  32  N.  Y.  L.  Jour. 
■46  N  E.  297,  57  Am.  SI.  Rep.  496.       1037,  100  App.  Div.  . 

6.  Vegelahn     v.     Guntner,     167 

386 


Ch.    13  TRADE    UNIONS.  §    336 

Strikers  have  the  right  to  argue  or  discuss  tlie  subject  of  em- 
ployment with  the  new  employes,  and  persuade,  if  they  can  ;  but 
the  new  employes  must  be  allowed  the  right  to  come  and  go  with- 
out fear  or  molestation,  and  without  being  compelled  to  discuss 
this  or  any  other  question,  and  without  being  guarded  or  pick- 
eted. Persistent  and  continuous  persuasion  by  members  is  of 
itself  intimidation.  Picketing  which  in  fact  annoys  or  intimi- 
dates employes  is  clearly  an  intercference  with  their  rights. 
Any  unlawful  nuisance  may  be  created  by  a  congregation  of  per- 
sons sufficient  to  obstruct  a  highway,  although  they  are  entirely 
peaceable.  When  a  large  number  of  persons  assemble  with  the 
express  purpose  of  harrassing  or  annoying  others,  to  deter  them 
from  engaging  in  lawful  employment,  their  conduct  is  unlaw- 
ful. And  especially  where  picketing  is  accompanied  by  more 
aggressive  intimidation,  not  only  by  language  villainous,  vulgar 
and  obscene,  mixed  with  execrable  oaths  and  threats  of  murder, 
and  by  outrageous  and  brutal  assaults,  these  acts  are  unlawful.* 
And  a  patrol  of  strikers  in  front  of  a  factory  is  unlawful,  be- 
cause it  is  a  means  of  intimidation  w'hen  used  in  combination 
with  social  pressure,  threats  of  personal  injury  and  the  like.^ 
Picketing  in  and  of  itself,  when  properly  conducted,  is  not  un- 
lawful, but  it  is  so  when  accompanied  by  violence  or  any  manner 
of  coercion  or  intimidation.  But  it  is  very  doubtful  whether 
picketing  has  ever  been,  or  will  be, used  by  strikers  except  for  the 
purpose  of  intimidation.  And  if  a  strike  is  ordered  on  buildings 
under  construction,  where  work  cannot  be  stopped  without  in- 
jury to  the  owner,  such  strike  is  unlawful,  though  the  action  was 
to  force  out  non-union  men  or  compel  them  to  join  the  union. ^^ 

What  is  unlawful  picketing  is  a  question  not  settled.  Mere 
picketing,  if  it  is  peaceable  and  without  threats  or  intimidation, 
cannot  really  be  considered  as  unlawful."  But  the  use  of 
threats,  violence,  or  intimidating  with  the  intent  of  preventing 

8.  Union  Pac.  R.  R.  Co.  v.  Ruef,  10.  Eidnian  v.  :MitchelI,  207  Pa. 
12u   Fed.   Rep.   102.  79,  5G  A.  327,  63  L.  R.  A.  534. 

9.  Vegelahn     v.      Guntner,      167  11.  Foster    v.    Protective    Asso., 
Mass.  92,  44  N.  E.  1077,  51  Am.  St.  78  N.  Y.  S.  860,  39  Misc.  K.  48. 
Rep.  443,  35  L.  R.  A.  722. 

387 


§  336       CONTRACTS  AGAINST  PUBLIC  POLICY.       Ch.  13 

laborers  from  entering  the  employment  of  employers  or  prevent- 
ing- customers  entering  the  stores  of  merchants,  is  unlawful.  It 
is  held  that  picketing  itself  is  a  threat  which  produces  in  the 
minds  of  non-union  men  a  feeling  of  fear.^^  But  this  doctrine 
is  not  generally  upheld,  and  when  there  is  no  intimidation  the 
picketing  is  not  unlawful. ^^  But  there  can  be  picketing  which 
is  unlawful,  though  there  is  no  physical  violence.  So  calling 
non-union  men  by  approbrious  names  is  unlawful  interference.^* 
So  to  hold  up  non-union  laborers  to  the  ridicule  and  contempt  of 
bystanders  is  wrong. ^^  So  holding  a  banner  in  front  of  a  factory 
requesting  workmen  to  keep  away  is  a  means  of  threat  and  in- 
timidation to  prevent  laborers  from  entering  the  employment 
of  the  factory.^® 

The  fact  that  the  imion  strikers  assemble  in  great  crowds 
seems  to  be  a  threat  and  to  convert  persuasion  into  intimida- 
tion." 

The  act  committed  must  be  unlawful  and  productive  of  in- 
jury of  the  party  complaining.  If  the  act  is  lawful  and  may  be 
lawfully  performed,  it  is  an  injury  without  a  remedy.^^  But 
a  combination  to  do  injurious  acts  expressly  directed  to  another, 
by  way  of  intimidation  or  constraint,  either  of  himself  or  of 
persons  employed  or  seeking  employment  by  him,  is  a  wrong- 
ful interference  with  the  contractual  rights  of  others. ^^ 

12.  Otis  Steel  Co.  v.  Local  Union,  17.  American  Steel  Wire  Co.  v. 
110  Fed.  Rep.  698.  Wire   Drawers,   90   Fed.   Eep.   608; 

13.  Krebs  v.  Rosenstein,  67  N.  United  States  v.  Kane,  23  Fed.  Rep. 
Y.  S.  630,  56  App.  Div.  619;  Stand-  750;  People  v.  Wiljig,  4  N.  Y.  Cr. 
ard  Tube  v.  Inter.  Union,  9  Ohio  403;  Makall  v.  Ratchford,  82  Fed. 
Dec.  692.  Rep.  41. 

14.  O'Neil  V.  Behanna,  182  Pa.  18.  Macauley  v.  Turney,  19  R. 
St.  243,  37  A.  843,  61  Am.  St.  Rep.  I.  255,  33  A.  1,  61  Am.  St.  Rep. 
702  and  note;  Murdock  v.  Walker,  770,  37  L.  R.  A.  455. 

152  Pa.  St.  595,  25  A.  492,  34  Am.  19.    Vegelahn    v.    Guntner,     167 

St.  Rep.  678.  Mass.  92,  44  N.  E.   1077,  35  L.  R. 

15.  Wick  China  Co.  v.  Brown,  A.  722,  57  Am.  St.  Rep.  443; 
164  Pa.  St.  449,  30  A.  261.  O'Neil  v.  Behanna,  182  Pa.  St.  236, 

16.  Sherry  v.  Perkins,  147  Mass.  37  A.  843,  38  L.  R.  A.  382,  61  Am. 
212,  17  N.  E.  307,  9  Am.  St.  Rep.  St.  Rep.  702. 

689. 

388 


Ch.  13  TRADE  UNIONS.  §§  336,  337 

I 

In  general,  threats  of  physical  injury,  or  injury  to  the  prop- 
erty of  an  employer,  especially  if  accompanied  by  assaults  or 
overt  acts,  which  will  intimidate  a  man  of  ordinary  courage  so 
as  to  make  him  abandon  his  employer, — are  an  unlawful  inter- 
ference with  personal  rights.^" 

In  the  United  States  mere  threats  not  producing  intimidation 
are  not  lawful.^^  But  in  England,  by  statute,  such  threats 
are  unlawful."^  A  statute  may  provide  that  a  peaceable  com- 
bination may  organize  for  or  against  employment ;  and  in  such 
case  where  there  is  no  intimidation,  the  acts  of  the  employes  are 
not  unlawful. ^^  But  such  statute  does  not  make  it  lawful  for 
such  combination  to  injure  a  man  in  his  business  by  a  concerted 
action  on  the  part  of  an  immense  number  of  persons  to  cease 
dealing  with  him,  by  threats  to  withdraw  their  custom  from 
him,  for  the  purpose  of  obliging  him  to  accede  to  their  de- 
mands, or,  in  other  words,  to  boycott  him.^ 

§  337-  Blacklisting. —  An  employer  may  keep  in  a  book  the 
names  of  employes  discharged  because  they  were  members  of  a 
labor  union,  and  may  invite  inspection  of  that  book  by  other 
employers,  even  though  the  latter  therefore  refuses  to  hire  the 
discharged  employes.  The  employer  has  a  right  to  keep  a  black- 
list which  may  be  referred  to  by  those  interested.^ 

However,  a  statute  which  prohibits  blacklisting  is  constitu- 

20.  Beck  V.  Protective  Union,  Co.  v.  Glass  Bottle,  etc.  Asso.,  59  N. 
118  Mich.  497,  77  N.  W.  13,  42  L.        J.  Eq.  49,  46  A.  208. 

R.  A.  407,  74  Am.  St.  Rep.  427;  22.  Lyons  v.  Wilkins  (1896),  1 
Manufacturers'  Outlet  Co.  v.  Long-  Ch.  811,  74  L.  T.  3o8,  60  J.  P.  325. 
ley,  20  R.  I.  86,  37  A.  535;  Curran  23.  Mayer  v.  Stone  Cutters,  47 
V.  Galen,  152  N.  Y.  33,  46  N.  E.  N.  J.  Eq.  519,  20  A.  492. 
297,  37  L.  R.  A.  8^92,  57  Am.  St.  24.  Barr  v.  Trades  Council,  53 
Rep.  496;  Cumberland  Glass  Manuf.  N.  J.  Eq.  101,  30  A.  881.  See,  "  In- 
Co.  V.  Glass  Bottle,  etc.  Asso.,  59  junction  and  Organized  Labor.'' — 
N.  J.  Eq.  49,  46  A.  2^06 ;  In  re  Debs,  34  Chi.  L.  News,  327 ;  "  Picketing  a 
158  U.  S.  564,  15  S.  Ct.  900,  64  Store— Injunction."— 52  Am.  Law- 
Fed.  Rep.  724;  Allen  v.  Flood  Register,  531. 
(1898),  A.  C.  1.  1.  Boyer  v.  Western  Union  Tel. 

21.  Cumberland     Glass     Manuf.  Co.,   124   Fed.  Rep.  246;   Young  v. 

Railroad  Co.    (Ind.),  69  N.  E.  300. 

389 


§  337       CONTRACTS  AGAINST  PUBLIC  POLICY.       Cll.  13 

tional,  whore  there  is  express  or  implied  malice.^  This  statute 
should  only  apply  to  employers  who  act  maliciously  and  want- 
only, on  their  own  initiative,  and  endeavor  to  prevent  their  em- 
ployes from  obtaining  employment  elsewhere ;  this  is  the  only 
rational  interpretation  of  such  statute,  because  under  the  con- 
stitution. State  and  Federal,  an  employer,  without  malice,  has 
a  right  to  give  information  with  respect  to  a  former  employe. 
It  may  be  laid  down  as  a  general  principle,  that  it  is  a  violation 
of  legal  right  to  interfere  with  contractual  relations  recognized 
by  law  if  there  be  no  sufficient  cause  justifying  the  interference.^ 

So  an  employer  has  a  right,  in  the  absence  of  contractual  re- 
lations, to  discharge  any  employe  with  or  without  notice  at  any 
time,  even  for  belonging  to,  or  for  joining  a  labor  organization, 
and  the  same  right  to  leave  the  service  of  an  employer  is  ac- 
corded the  employe;  and  the  employer  has  the  right  to  main- 
tain, without  malice,  a  blacklist  and  give  it  out  to  others.* 
Because  it  is  against  public  policy  and  common  right,  to  com- 
pel another  against  his  will,  or  to  compel  one  to  retain  in  his 
employment  a  man  he  does  not  want. 

But  it  is  held  that  a  statute  is  constitutional  which  prohibits 
employers  from  combining  for  the  purpose  of  interfering  with 
or  preventing  any  person,  either  by  threats  or  blacklisting,  from 
procuring  employment.^ 

In  blacklisting  a  correct  account  must  be  given.  And  so  if 
a  railroad  company  has  a  custom  of  keeping  a  record  of  the 
cause  of  the  discharge  of  employes,  and  to  decline  to  employ 
those  discharged  for  certain  causes,  it  is  a  part  of  the  contract 
of  employment  that  no  false  entry  as  to  the  cause  of  such  dis- 

2.  State  V.  Justus,  85  Minn.  279,  A.  115,  83  Am.  St.  Rep.  289;  Per- 
88  N.  W.  759,  5B  L.  R.  A.  757,  89  kins  v.  Pendleton,  90  Me.  166,  38 
Am.    St.   Rep.   550.  A.  96,  60  Am.  St.  Rep.  252. 

3.  London  Guar,  and  Accident  4.  Boyer  v.  Western  Union  Tel. 
Co.  V.  Horn,  206  III.  493,  69  N.  E.  Co.,   124   Fed.  Rep.   246. 

626,  99  Am.  St.  Rep.   185;   Hollen-  5.  State  v.  Justus,  85  Minn.  279, 

back  V.  Restine,  114  Iowa,  358,  86  88  N,  W.  759,  56  L.  R.  A.  757,  8» 

N.  W.  377;  Moran  v.  Dunphy,  177  Am.  St.  Rep.  550. 
Mass.  485,  59  N.  E.   125,  52  L.  R. 

390 


Ch.   13 


TKADE    UNIONS. 


§§  337,338 


charge  shall  be  made,  or  communicated,  if  made,  to  any  other 
railroad  company.^ 


§  338.  The  coal  strike  commission. —  In  1903  an  anthracite 
coal  strike  occurred  in  Pennsylvania  and  the  President  ap- 
pointed a  commission  to  settle  it.  The  commission  justified  the 
use  of  the  malitia  to  keep  the  peace,  condemned  boycotts  and 
violence,  and  forbid  any  effort  of  the  strikers  to  restrict  the 
output  of  mines,  except  by  agreement  with  the  operators,  and 
also  forbid  discrimination  against  any  workman  because  of 
membership  or  non-membership  in  any  labor  organization,  and 
any  interference  by  union  men,  and  any  interference  by  any 
labor  organization.  This  decision  is  of  the  highest  value,  be- 
cause it  comes  from  eminent  men  from  the  most  varied  posi- 
tions and  vocations  in  life.  This  commission  gave  no  counten- 
ance to  t^Tanny,  whether  by  capitalists  or  by  unions,  and 
tolerated  no  lawlessness.^ 


6.  Hundley  v.  Louisville,  etc.  R. 
R.  Co.  (Ky. ) ,  63  L.  E.  A.  289. 

1.  See  "A  Word  More  on  the 
Coal  Mines." — 14  Green  Bag,  570; 
"  Legislation  to  Control  the  Anthra- 
cite Coal  Corporations." — 64  Al- 
bany Law  Journal,  418;  "The  Coal 


Mines  and  the  Law." — 14  Green 
Bag,  514;  "Cause  of  the  Coal 
War." — 42  Legal  Advisor,  176;  "A 
Problem  in  Mining  Law:  Walrath 
V.  Champion  Mining  Company." — 
16  Harvard  Law  Review,  94. 


391 


Pi^RT  T\r. 


OPEEATIOE"  OF  CONTRACTS. 


(393) 


Pi^HT    IV. 

CHAPTER  XIV. 
Contractual   Relations. 


ARTICLE  I. 

CoNTRiVCTUAL  RELATIONS. 

Section  339.  Persons  AflFectcd. 

340.  Meeting  of  Minds — Right  of  Privacy. 

341.  Master  and  Servant — Interference  of  Third  Parties — Boycott. 

342.  Duty  not  to  Interfere  In  Any  Contract. 

343.  Restricting  the  Rule  to  Servants. 

344.  When  the  Period  of  Employment  is  not  Certain. 

345.  Doing  an  Act  which  is  Legal  in  Itself. 

346.  Fraudulent  Representations. 

347.  To  Sustain  an  Action  the  Discharge  Must  Take  Place. 

348.  As  to  Priorities  of  the  Parties. 

349.  Water  Companies — Rights  of  Third  Persons. 

350.  Assignment  of  City   Contract. 

351.  No  Priority  of  Parties  or  of  Consideration. 

§  339-  Persons  affected. — Generally  onlv  parties  to  a  corn- 
tract  are  affected  by  it.  Hence,  a  contract  cannot  impose  liabil- 
ities on  persons  not  parties  to  it,  nor  confer  rights  on  them.  In 
case  of  agency  the  agent  is  obeying  his  principal's  orders  and  is 
therefore  acting  for  his  principal,  and  so  this  is  not,  in  fact, 
an  exception  to  the  general  rule.  And  so  the  exception  that 
rights  and  liabilities  of  a  contract  may  pass  by  assignment  by  the 
parties  or  by  operation  of  law  to  others,  is  only  apparent.  The 
assignees  are  substituted  to  the  rights  of  the  original  parties. 
There  can  be  no  privity  of  contract  only  to  those  who  are  made 

395 


§    339  OPEEATION    OF    CONTEACTS.  Cll.    14 

parties.^  However,  the  trend  of  decisions  now  is  that  a  party 
for  whom  a  contract  is  made  may  sue  on  it.  This  is  upon  the 
ground  that  the  party,  for  whose  benefit  the  contract  was  made, 
when  he  accepted  the  act  of  the  original  parties,  is  brought  into 
privity  with  the  promisor,  and  can  therefore  enforce  it  against 
him.^  But  the  law  seems  to  be  otherwise  in  England.^  But 
where  no  contractual  relations  exist,  a  party  has  no  right  to 
appropriate  or  take  the  property  of  another  for  his  own  benefit. 
Thus,  a  party  has  no  right  to  copy  from  the  electrical  instru- 
ments and  printing  machines  of  another,  known  as  tickers,  for 
the  purpose  of  publishing  through  his  own  tickers,  or  otherwise 
disposing  of,  or  using  any  of  the  news  or  information  which  may 
thereafter  be  collected.  Such  information  is  the  private  prop- 
erty of  the  owner  of  the  ticker  and  can  only  be  used  as  he  sees 
fit.*  But  if  property  is  dedicated  to  the  public,  the  owner's 
rights  are  divested.  Thus,  when  an  architect  publishes  his 
plans  of  a  building,  he  loses  his  exclusive  right  to  them.^  So 
a  publisher  cannot  control  the  price  of  his  publication  by  a  res- 
ervation printed  on  the  page  following  the  title-page  that  if  the 
book  is  sold  for  a  less  price  than  specified,  he  will  consider  it 
an  infringement  of  the  copyright.  Because  when  a  publisher 
transfers  his  title  to  a  copy  of  his  book,  either  to  a  reader,  sub- 
scriber, or  retailer,  he  has  exercised  his  sole  liberty  of  vending 
that  particular  copy,  and  is  the  only  right  protected  by  the  copy- 
right law.®  If  a  publisher  wishes  to  control  the  sale  of  his 
work  in  the  possession  of  the  retailer,  it  must  be  by  an  agree- 

1.  Boston  Ice  Co.  v.  Potter,  123       rence  v.  Fox,  20  K.  Y.  268 ;  Pingrey 
Mass.  28,  25  Am,  Rep.  9;  Sehmoling        on  Mortg.  326,  1028,  1031. 

V.  Thomlinson,  6  Taunt.  147 ;   Fen-  3.  Tweddle  v.  Atkinson,  1  B.  &  S. 

der  V.  Kelly,  58  111.  App.  283;  Law-  393;  Compare  In  re  Rothehan,  etc. 

rence  v.  United  States,  71  Fed.  Rep.  Co.,  25  Ch.  D.  111. 

228;    Gaitskill   v.    Chenaelt,    32    S.  4.  National    News    Tel.     Co.    v. 

W.  757,  17  Ky.  L.  J.  828;  Martin  Western   Union  Tel.   Co.,   119   Fed. 

V.  Peet,  92  Hun,  133,  36  N.  Y.  S.  Rep.  294,  56  C.  C.  A.  198,  60  L.  R. 

554;   Freeman  v.  Railroad  Co.,  173  A.  805. 

Pa.  St.  274,  33  A.  1034.  5.  WrigKt  v.  Eisle,  83  N.  Y.  S. 

2.  Tweeddale   v.    Tweeddale,    116  887,  86  App.  Div.  306. 

Wis.  517,  93  N,  W.  440,  61  L.  R.  A.  6.  Edison     Phonograph     Co.     v. 

509,  96  Am.   St.  Rep.   1003;   Law-        Pike,    116    Fed.    Rep.    863;    Victor 

396 


Ch.    14  CONTEACTUAT.    RELATIONS.  §§    339,  340 

ment.     A  reservation  as  to  price  cannot  control,  or  be,  an  in- 
fringement. 

§  340.  Meeting  of  minds  —  Right  of  privacy. —  In  order  to 
form  a  contract  there  mnst  be  a  meeting  of  minds.  So  a  party 
has  a  right  to  select  the  party  with  whom  he  will  contract,  and 
cannot  therefore  be  compelled  to  contract  with  a  party  withont 
his  consent.^ 

Where  there  is  no  privity  of  contract,  the  possession  and  use 
of  property  will  not  support  an  implied  contract  ;^  and  no  pre- 
sumption of  assent  can  be  implied  from  the  reception  and  use 
of  property,  where  the  recipient  has  no  knowledge  that  it  was 
furnished  by  one  party,  when  he  had  a  right  to  suppose  that 
it  was  furnished  by  another  under  an  express  contract.* 

But  if  the  recipient  of  the  property  has  received  notice  that 
the  contract  to  furnish  property  to  him  has  been  assigned  to  an- 
other, and  he  continues  to  receive  it,  then  an  implied  contract 
is  created  and  a  contract  with  the  assignee  exists.* 

A  voluntary  payment  made  by  one  of  a  debt  by  another  with- 
out his  request  creates  no  assumpsit  on  the  part  of  the  latter  to 
the  former,^  because  a  party  cannot  make  another  his  debtor 
without  the  latter's  consent.®  Under  this  head  the  question  of 
the  right  of  privacy  comes.  It  has  been  decided  that  a  party  had 
no  right  to  privacy  in  his  photogi'aph ;  that  a  photograph  may 
be  used  as  a  trade-mark,  and  the  subject  whose  photograph  is 
used  has  no  remedy.^     Such  a  doctrine  is  unjust  and  unwise, 

Talking  Mach.  Co.  v.  The  Fair,  118  4.  Mudge  v.  Oliver,  1  Allen 
Fed.  Rep.  609;  Bobbs-Menill  Co.  v.  (Mass.).  74;  Orcuft  v.  Nelson,  1 
Snellenburg,  131  Fed.  Rep.  530.  Gray  (Mass.),  536;  Mitchell  v.  La- 
See,  also,  Harrison  v.  Maynard,  61  page.  Holt.  N.  P.  253. 
Fed.  Rep.  689,  10  C.  C.  A.  17,  26  5.  Hearn  v.  Cullin,  54  Md.  533. 
U.  S.  App.  99;  Publishing  Co.  v.  6.  Durnford  v.  Messiter,  5  Maule 
Smyth,  27  Fed.  Rep.  914.  &  Sel.  446. 

1.  Sehmoling  v.  Tbomlinson,  6  7.  Roberson  v.  Box  Co..  171  N.  Y. 
Taunt.  147.  538,  64  X.  E.  442,  59  L.  R.  A.  478; 

2.  Hills  V.  Snell,  104  Mass.  173,  Marlin  Fire  Arms  Co.  v.  Shields, 
177.  171  N.  Y.  384,  64  N.  E.  163,  59  L. 

3.  Boston  lee  Co.  v.  Potter,  123  R.  A.  310;  Changed  by  statute  of 
Mass.  28.  1903,  Ch.  132. 

397 


§    340  OPERATION    OF    CONTRACTS.  Cll.    14 

and  against  the  common  sense  of  people  in  general,  and  has 
been  repudiated  in  England,  and  the  right  of  privacy  upheld. 
The  case  is  this :  A  father  employed  a  photographer  to  photo- 
graph his  two  daughters  and  ordered  and  paid  for  a  certain, 
number  of  photographs.  The  photographer's  successors  in  bus- 
iness, of  their  own  accord,  made  enlargements  of  the  photo- 
graphs and  exhibited  them  in  their  studio  for  the  purpose  of 
their  trade.  To  this  the  father  objected,  and,  on  the  photo- 
graphers refusing  to  desist  from  exhibiting  the  photographs, 
brought  an  action  of  injunction,  and  the  court  held  that  a  pho- 
tographer who  had  been  employed  by  a  customer  to  take  a  por- 
trait has  no  right  to  print  copies  of  it  for  sale  or  exhibition 
without  the  customer's  consent.  The  nature  of  a  photographer's 
right  in  the  negatives  of  photographs  taken  by  him  in  the  ordi- 
nary course  of  business  was  discussed,  and  it  was  held  the  pho- 
tographer is  entitled  to  the  custody  of  the  negative  in  order  to 
secure  to  himself  the  privilege  of  supplying  possible  future 
orders,  while  the  customer  has  an  interest  in  it  to  the  extent 
of  entitling  him  to  prevent  the  photographer  using  it  except  on 
his  order  and  with  his  consent.^  This  decision  is  in  accord  with 
reason  and  common  sense.  In  fact,  it  is  a  doubtful  question 
whether  the  State  even  has  the  right  to  take  the  photograph  and 
the  Bertillon  measurement  and  publish  them,  of  a  suspected 
criminal.'^ 

It  should  be  held  that  an  implied  contract  exists  between  the 
photographer  and  the  sitter  that  the  negative  shall  not  be  used 
for  any  other  purpose  than  to  furnish  photographs  at  the  order 
of  the  sitter,  and,  therefore,  the  photographer  has  no  right  to 
sell  the  negative  or  to  print  photographs,  only  as  ordered  by  the 
sitter.^" 

It  is  said  that  the  right  of  privacy  during  life  dies  with  the 
person,  and  therefore  no  person  can  maintain  an  action  to  pre- 

8.  McCosh  V.  Crow,  English  10.  Pollard  v.  PTiotograph  Co., 
Court  of  Sessions,  March  17,  1903.  40    Ch.    D.    345;    Levyeau    v.    Cle- 

9.  Owen  v.  Partridge,  82  N.  Y.  ments,  175  Mass.  376,  56  N.  E.  735, 
S.  248.  50  L.  R.  A.  391  and  note;  Boucas  v. 

Cooke    (1903),  2  K.  B.  227. 

398 


Ch.    14  CONTRACTUAL    RELATIONS.  §§    340,  341 

vent  the  exhibition  of  a  picture  of  a  deceased  relative,  unless  the 
injury  caused  by  that  display  is  to  himself,  and  the  action  can- 
not be  brought  simply  because  the  exhibition  will  be  disagreeable 
to  the  person  whose  portrait  is  to  be  exhibited  had  he  been  liv- 
ing.^^  And  where  a  party  in  his  lifetime  has  permitted  his 
photograph  to  be  printed  in  newspapers  and  various  other  pub- 
lications, and  he  is  a  public  man,  there  is  no  reason  for  prevent- 
ing his  photograph  from  publication  after  his  death.^^  Un- 
doubtedly a  distinction  should  exist  between  private  and  public 
persons.  A  private  individual  should  be  protected  in  his  right 
of  privacy. 

The  photograph  and  measurement  of  a  prisoner  taken  by 
officers  in  the  line  of  their  duty,  cannot  be  surrendered  to  the 
prisoner  after  he  has  been  set  at  liberty  by  reversal  of  the  con- 
viction. The  photograph  and  measurements  are  a  part  of  the 
other  records  which  go  to  make  up  the  inevitable  track  of  the 
released  prisoner,  and  to  undertake  to  blot  out  this  record  would 
be  a  public  inconvenience,  if  not  an  impossibility.^^ 

§  341.  Master  and  servant  —  Interference  of  third  parties 
—  Boycotts. —  While  a  contract  does  not  impose  a  duty  upon 
parties  not  in  privity,  yet  it  does  impose  a  duty  not  to  interfere 
with  its  operation.  So  an  action  of  a  servant  can  be  main- 
tained against  a  person  who  has  maliciously  procured  the  master 
to  discharge  such  servant  from  employment  in  which  he  is  en- 
gaged under  legal  contract  for  a  certain  period,  provided  dam- 
ages resulted  to  the  employe  from  such  discharge.^    So  boycotts 

11.  Schuyler  v.  Curtis,  147  N.  vacy  Based  on  Breach  of  Trust  or 
Y.  434,  42  N.  E.  22,  49  Am.  St.  Confidence." — 57  Cent.  L.  Jour. 
Rep.  671,  31  L.  R.  A.  286;  Atkin-  3G1;  "The  Right  of  Privacy.'"— 36 
son  V.  Doherty,   121  Mich.  372,  80  Chicago  Legal  News,  126. 

N.  W.  285,  46  L.  E.  A.  219,  80  Am.  1.  Chiplcy  v.  Atkinson,  23   Fla. 

St.  Rep.  507.  206,  1  So.  134,  11  Am.  St.  Rep.  367 

12.  Corliss  V.  Walker  Co.,  57  Jones  v.  Blocker,  43  Ga.  331 
Fed.  Rep.  434,  31  L.  R.  A.  283  and  Walker  v.  Cronin,  107  Mass.  555 
note,  64  Fed.  Rep.  380.  Lucke  v.  Clothing  Cutters,  77  Md. 

13.  In  re  Molineux,  83  N.  Y.  S.  396,  26  A.  505,  19  L.  R.  A.  408,  39 
943,  41  Miscel.  154.  See,  "Actions  Am.  St.  Rep.  421;  Jones  v.  Stanley, 
for  Infringement  of  Right  of  Pri-  76  N.  Car.  355;   Haskins  v.  Roys- 

399 


341 


OPEEATION    OF    CONTKACTS. 


Ch.  14 


■with  unlawfulness  and  malicious  intent  are  illegal.  For  every 
person  has  a  right  as  between  his  fellow-citizen  and  himself,  to 
carry  on  his  business,  within  legal  limits,  according  to  his  own 
discretion  and  choice,  with  any  means  which  are  safe  and 
healthful,  and  to  employ  therein  such  persons  as  he  may  select; 
and  every  other  person  is  subject  to  the  correlative  duty  arising 
therefrom,  to  refrain  from  any  obstruction  of  the  fullest  exer- 
cise of  this  right,  which  can  be  made  compatible  with  the  exer- 
cise of  similar  rights  by  others.^ 

ISTo  one  has  a  right  to  interfere  with  the  business  of  another, 
his  occupation,  profession,  or  way  of  obtaining  a  livelihood ; 
and  it  does  not  matter  whether  the  interference  is  tainted  with 
any  moral  turpitude  or  not.^ 

But  it  is  said  that  this  rule  applies  only  to  actions  by  masters 
or  servants  for  interference  of  third  party  in  their  contracts  for 
hire.     Beyond  this,  it  is  held,  the  rule  does  not  go,  and  has  no 


ton,  70  N.  Car.  601,  16  Am.  Rep. 
780;  Lumley  v.  Gye,  2  El.  &  Bl. 
216;  Gregory  v.  Brunswick,  6  Man. 
&  G.  205;  Perkins  v.  Pendleton,  90 
Me.  16G,  38  A.  96,  60  Am.  St.  Rep. 
252;  Temperton  v.  Russell  (1893), 
1  Q.  B.  715;  Carew  v.  Rutherford, 
106  Mass.  1,  8  Am.  Kep.  287;  Van 
Horn  V.  Van  Horn,  52  N.  J.  L.  284, 
20  A.  485,  10  L.  R.  A.  184;  Curran 
V.  Galen,  22  N.  Y.  S.  826,  152  N. 
Y.  33,  46  N.  E.  297,  37  L.  R.  A. 
802,  57  Am.  St.  Rep.  496;  Bradley 
V.  Pierson,  148  Pa.  St.  502,  24  A. 
65;  Moores  v.  Bricklayers'  Union 
(Ohio),  23  Week.  L.  Bui.  48;  Delz 
V.  VVinfree,  80  Tex.  400,  16  S.  W. 
Ill,  23  Am.  St.  Rep.  705;  Jackson 
V.  Stanfield,  137  Ind.  592,  36  N.  E. 
345,  37  N.  E.  14,  23  L.  R.  A.  588; 
Bixby  V.  Dunlap,  56  N.  H.  456; 
Manstick  v.  Ranege,  9  Neb.  390,  2 
N.  739,  31  Am.  Rep.  415;  Barr  v. 
Trades  Council,  53  K.  J.  Eq.  101, 
30  A.  881;  Garrett  v.  Taylor,  Cro. 


Jac.  567;  Keeble  v.  Hickeringill,  11 
East,  574;  Young  v.  Hicks,  6  Ad. 
&  E.  606;  Bowen  v.  Hall,  6  Q.  B. 
Div.  333. 

2.  Barr  v.  Trades  Council,  53  N. 
J.  Eq.  101,  30  A.  881;  Hilton  v. 
Eckersley,  6  EL  &  Bl.  47.  See,  also, 
Mogul  Steamship  Co.  v.  McGregor, 
23  Q,  B.  608;  Toledo,  etc.  Co.  v. 
Penn.  Co.,  54  Fed.  Rep.  730,  738; 
Hopkins  v.  Stove  Co.,  83  Fed.  Rep. 
912,  28  C.  C.  A.  99,  49  U.  S.  App. 
709;  Exchange  Tel.  Co.  v.  Gregory, 
73  L.  T.  120. 

3.  Doremus  v.  Hennessey,  62  111. 
App.  391,  176  111.  608,  52  N.  E. 
924,  54  N.  E.  524,  43  L.  R.  A.  791, 
68  Am.  St.  Rep.  203;  Bowen  v. 
Hall,  6  Q.  B.  D.  33;  O'Neill  v.  Be- 
hanna,  182  Pa.  St.  236,  37  A.  843, 
38  L.  R.  A.  382,  61  Am.  St.  Rep. 
702  and  note;  Lumley  v.  Gye,  2  El. 
&  Bl.  216;  Mogul  Steamship  Co.  v. 
McGregor,  21  Q,  B.  544,  553,  23  Q. 
B.  598. 


400 


Ch.     14  CONTKACTUAI.    RELATIONS.  §    341 

application  to  ordinary  contracts  ;*  but  this  is  not  upheld  by  the 
weight  of  authority. 

Neither  can  the  State  boycott  in  running  an  employment  bu- 
reau, by  discriminating  against  employers  whose  employes  are 
on  a  strike  or  locked  out,  and  not  allowing  such  employers  to 
patronize  the  bureau.  Such  statute  is  in  conflict  with  Four- 
teenth Amendment  to  the  Federal  Constitution.^ 

As  to  boycotts  in  general,  the  following  rules  are  controlling: 

1,  All  laborers  may  lawfully  combine  and  form  unions  for  their 
mutual  benefit,  and  may  use  all  lawful  means  to  promote  their 
own  interests,  if  they  do  not  infringe  upon  the  rights  of  others ; 

2,  they  may  refuse  to  work  on  terms  offered  by  the  employer; 

3,  it  is  an  unlawful  means  to  hinder  or  prevent  others  from  work- 
ing for  an  employer  under  such  terms  as  they  shall  see  fit  f  4, 
one  means  of  such  hindering  and  preventing  is  in  various  ways, 
to  render  it  either  difficult  or  uncomfortable  for  such  willing 
workmen  so  to  labor ;  5,  another  unlawful  means  is  to  hinder  or 
prevent  willing  workmen  from  working  and  to  compel  employ- 
ers to  accede  to  terms  which  they  would  not  otherwise  adopt — • 
this  is  the  boycott  in  its  various  forms.^ 

All  the  courts  hold  that  contracts  binding  the  employer  to 
engage  none  but  union  employes,  and  to  discharge  no  employe 
except  for  cause  satisfactory  to  the  union,  are  against  public 
policy  and  unconstitutional.  All  men.  have  a  right  to  work 
where  they  desire  when  engaged,  and  the  employers  have  a 
right  to  engage  men  from  whatever  source  they  please  without 
discrimination  against  any  on  account  of  their  affiliations  or 
non-affiliations  with  organized  labor.  So  in  case  of  a  strike  the 
employer  has  the  right  to  engage  other  workmen.  He  may  de- 
clare for  an  open  shop,  thereby  engaging  any  laborer,  and  the 

4.  Gleneoo  Sand  Co.  .v.  Hudson,  7.  Mathew  v.  People,  202  111.  389, 
138  Mo.  439.  40  S.  W.  93,  36  L.  R.  67  N.  E.  28,  95  Am.  St.  Rep.  241; 
A.  840,  60  Am.  St.  Rep.  560.  Kellyville  Coal  Co.  v.  Harrier.  207 

5.  Mathews  v.  People.  202  111.  111.  624,  99  Am.  St.  Rep.  240.  See, 
389,  67  N.  E.  28,  95  Am.  St.  Rep.  also,  Connelly  v.  United  States  Sew- 
241.  er  Pipe   Co.,   184   U.   S.  540,  22   S. 

6.  Martin  v.  McFall   (^.  J.  Eq.),  Ct.  431. 
55  A.  465. 

401 


§§    341,  342  OPERATION    OF    CONTRACTS.  Ch.    14 

laborers  cannot  legally  bind  him  to  keep  closed  shop,  or  to  hire 
none  but  union  men.  The  right  to  contract  cannot  be  circum- 
scribed by  contract.^ 

So  a  statute  forbidding,  under  penalty,  an  employer  to  dis- 
charge an  employe  because  he  is  a  member  of  a  labor  organiza- 
tion, violates  the  constitutional  right  of  liberty  and  is  therefore 
void.* 

§  342.  Duty  not  to  interfere  —  In  any  contract. —  It  is  held 
that  a  third  party  has  no  right  to  interfere  in  any  contract 
whether  it  be  between  master  and  servant  or  other  parties.  So 
remedies  given  by  the  common  law  in  cases  of  malicious  inter- 
ference of  third  parties,  are  not  in  terms  limited  to  any  discrip- 
tion  of  servants  or  service ;  so  in  all  cases  where  a  man  has  a 
temporal  loss  or  damage  by  the  wrong 'of  another,  he  may  have 
an  action  upon  the  case,  to  be  repaired  in  damages.^  Thus, 
where  a  third  party  has  maliciously  influenced  an  opera  singer 
to  break  an  engagement  to  sing  at  a  theatre,  the  plaintiff  may 
recover  damages  from  the  wrongdoer,^ 

And  so  it  is  held  that  an  action  will  lie  for  the  malicious  pro- 
curement of  a  breach  of  contract,  though  not  for  personal  ser- 
vice, if  by  the  procurement  damage  is  intended  to  result  and  did 
result  to  plaintiff.^ 

8.  Gray  V.  Building  Trades  Coun-  Car.  601,  16  Am.  Rep.  780;  Chip- 
cil  (Minn.),  97  N.  W.  633,  63  L.  R.  ley  v.  Atkinson,  2^  Fla.  206,  11  Am. 
A.  753.  St.    Rep.    367;    Walker   v.    Cronin, 

9.  State  V.  Kreutsberg,  114  Wis.  107  Mass.  555;  Bowen  v.  Hall.  6 
530,  90  N.  W.  1098,  58  L.  R.  A.  Q.  B.  Div.  339;  Jones  v.  Blocker, 
748,  91  Am.  St.  Rep.  934.  See  "The  43  Ga.  331;  Lucke  v.  Clothing  Cut- 
Law  of  Strikes  and  Boycotts."— 52  ters,  77  Md.  396,  39  Am.  St.  Rep. 
Am.  L.  Register,  73.  421,  26  A.  505,   19  L.  R.  A.  408; 

1.  Temperton  v.  Russell  (1893),  Doremus  v.  Hennessey,  62  HI.  App. 
1  Q.  B.  715;  Bowen  v.  Hall,  6  Q.  B.  391,  176  111.  608,  52  N.  E.  924,  54 
Div.  339;  Haskins  v.  Royster,  70  N.  E.  524,  43  L.  R.  A.  797,  68  Am. 
N.  Car.  601,  16  Am.  Rep.  780.  St.  Rep.  203;  Tarlton  v.  McGawley, 

2.  Lumley  v.  Gye,  2  El.  &  Bl.  Peak,  N.  P.  C.  270;  Clifford  v. 
216,  228.  Brandon,  8  Camp.  358;   Gregory  v. 

3.  Lumley  v.  Gye,  2  El.  &  Bl.  Brunswick,  6  Man.  &  G.  205;  Gar- 
216;    Haskins    v.    Royster,    70    N.  rett  v.  Taylor,  Cro.  Jac.  567. 

402 


Cll.     14  COXTKAC'TUAIv    KELATIOA'S.  §    342 

In  England  it  is  held  that  malice  or  indirect  motive,  though 
accompanied  by  loss  to  another,  is  now  definitely  declared  to  be 
in  itself  no  cause  of  action.  There  must  be  some  independent, 
unlawful  act.  Therefore,  it  is  actionable  for  A  knowingly  to 
procure  B  to  break  his  contract  with  C ;  it  is  also  actionable  for 
A,  by  the  use  of  illegal  means,  to  procure  B  to  do  an  act  detri- 
mental to  C.  But  in  both  cases  the  gist  of  the  action  is  the 
prima  facie  unlawfulness  which  amounts  to  a  civil  wrong  if  it 
is  accompanied  by  knowledge  on  his  part  of  the  effect  of  his 
conduct.'*  The  facts  of  this  case  are  these:  In  April,  1804,  two 
shipwrights.  Flood  and  Taylor,  were  employed  by  the  Glengall 
Iron  Co.  in  repairing  a  steamship.  Upon  the  same  job  other 
millwrights  were  employed,  and  also  a  number  of  ironworkers, 
who  were  members  of  the  Boilermakers'  Society,  and  it  was  a 
rule  of  their  union  that  ironworkers  ought  to  work  in  iron  only 
and  shipwrights  in  wood.  Upon  this  job  Flood  and  Taylor 
were  working  in  accordance  with  the  rule,  but  on  a  former  occa- 
sion they  had  violated  it  by  working  in  iron,  and  the  iron  work- 
ers decided  to  have  no  association  with  them.  Mr.  Allen,  the 
delegate  of  the  boilermakers'  society,  was  called  upon  to  present 
these  objections  to  the  company,  which  he  did,  saying  that  un- 
less Flood  and  Taylor  were  discharged  the  other  men  would  quit 
work.  They  were  discharged.  This  course  was  rendered  prac- 
ticable without  any  obvious  illegality  by  the  fact  that  the  men 
of  both  classes  were  engaged  merely  by  the  day. 

The  discharged  men  brought  an  action  against  Allen,  who 
had  not  procured  any  breach  of  contract  on  the  part  of  the  com- 

4.  Allen  v.   Flood    (1898),  A.   C.  of   the   high   court.     Tlie   ease   was 

1,  177.     This  case  came  on  for  trial  then  carried  to  Oie  House  of  Lords, 

before  a   judge   and  jury   in    1894,  the  court  of  last  resort,  which   re- 

and  a  verdict  was  rendered,  for  the  versed  the  case,  the  judges  standing 

plaintiff,    of    20    pounds    damages,  six  for  reversal  to  three  for  affir- 

the    jury    finding    fliat    Allen    had  mation.     In  the  courts  where  this 

acted  maliciously.     Allen  appealed,  case  was  heard,  from  first  to  last, 

and   the    Court    of   Appeals    unani-  twenty-one  judges  were  engaged,  of 

mously  affirmed  the  judgment,  after  whom  thirt<'en  decided  in  favor  of 

hearing    two    arguments    and    con-  the   discharged   men.      See   Huttloy 

suiting  officially  with  the  law  lords  v.  Simmons,  14  Times  L.  R.  150. 

403 


§§    342-344  OPERATION    OF    CONTKACTS.  Cll.    14 

pany,  nor  in  bringing  pressure  to  bear  upon  the  manager  had 
he  used,  or  threatened  to  use,  any  violence.  The  only  way, 
therefore,  of  supporting  the  action  was  to  base  it  upon  malice; 
that  is,  upon  the  intention  of  injuring  Flood  and  Taylor  for  the 
sake  of  proving  a  benefit  of  the  boilermakers'  society.  In  this 
case  Allen  did  nothing  unlawful.  The  House  of  Lords  held 
that  the  action  was  based  solely  on  malice,  which  was  not  enough 
to  sustain  the  action. 

§  343.  Restricting  this  rule  to  servants. —  One  line  of  cases 
holds  that  the  malicious  interference  of  a  third  party  does  not 
give  the  party  injured  any  right  of  action,  unless  he  be  an  ap- 
prentice, menial  servants  and  others  whose  means  of  living  is 
by  manual  labor ;  but  this  exception  exists  by  virtue  of  statute.^ 
Thus,  when  this  statutory  rule  is  adopted, if  the  defendant  malic- 
iously interfered  and  prevented  a  performance  of  a  contract, 
not  for  labor,  the  plaintiff  has  no  remedy  for  damages  sus- 
tained.^ 

In  those  jurisdictions  where  this  statutory  doctrine  has  not 
been  adopted,  the  interference  of  a  third  person  in  any  kind  of 
a  contract  comes  under  the  rule  as  to  damages. 

§  344.    When  the  period  of  employment  is  not  certain. — 

ISTeither  the  fact  that  the  term  of  service  interrupted  is  not  for 
a  fixed  period  nor  the  fact  that  there  is  not  a  right  of  action 
against  the  person  who  is  induced  or  influenced  to  terminate 
the  service  or  to  refuse  to  perform  his  agreement,  is  of  itself 
a  bar  to  an  action  against  a  third  person  maliciously  and  wan- 
tonly procuring  the  termination  of  or  a  refusal  to  perform  the 

1.  Statute  of  Lalwrers.  25  Ed-  Me.  225,  46  Am.  Rep.  373;  Payne 
ward  III.  V.    Railroad   Co.,    13    Lea    (Tenn.), 

2.  Chambers  v.  Baldwin,  91  Ky.  507,  fQ  Am.  Rep.  666;  Glencoe 
121,  15  S.  W.  57,  11  L.  R.  A.  545  Sand  Co.  v.  Hudson,  138  Mo.  439, 
and  note,  34  Am.  St.  Rep.  165;  40  S.  W.  93,  36  L.  R.  A.  804,  60 
Ashley  v.  Dixon,  48  N.  Y.  430,  8  Am.  St.  Rep.  560;  Rourlier  v.  Ma- 
Am.  Rep.  559;  Boyson  v.  Thorn,  98  cauley,  91  Ky.  135,  15  S.  W.  00,  11 
Cal.  578,  33  P.  442,  21  L.  R.  A.  233  L.  R.  A.  550,  34  Am.  St.  Rep.  171. 
and   note;    Heywood   v.   Tillson,   75 

404 


Cll.     14  CONTKACTUAL    KEJ.ATIONS.  §§    344,  345 

agreement.  So  long-  as  the  employer  is  willing  and  ready  to 
perform,  it  is  not  the  legal  right,  but  is  wrong  on  the  part  of 
a  third  party  maliciously  and  wantonly,  to  procure  the  employer 
to  terminate  or  refuse  to  perform  the  contract,  which  makes 
the  third  party  liable.  A  servant  who  is  earning  a  living  or 
otherwise  enjoying  the  fruits  and  advantages  of  his  industry 
or  enterprise  or  skill,  has  a  right  to  pursue  such  employment 
undisturbed  by  mere  malicious  or  wanton  interference.^ 

And  for  a  master  to  maintain  an  action  it  is  enough  if  the 
service  is  one  at  will,  if  subsisting  when  interrupted  by  an  un- 
lawful act,^  and  the  rule  applies  as  to  the  employe.^ 

§  345.  Doing  an  act  which  is  legal  in  itself. —  Where  one 
does  an  act  which  is  legal  in  itself  and  violates  no  right  of  an- 
other person,  it  is  generally  held  that  the  fact  that  the  act  is 
done  for  malice  or  other  bad  motive  toward  another,  does  not 
give  the  latter  a  right  of  action  against  the  former.  Though 
there  be  a  loss  or  damage  resulting  to  the  other  from  the  act, 
and  the  doer  is  prompted  to  it  solely  by  malice,  yet  if  the  act  be 
legal  and  violates  no  legal  right  of  the  other  person  there  is  no 
right  of  action  to  the  injured  person.'*     But  there  are  decisions 

1.  Chipley  v.  Atkinson,  23  Fla.  Compare  Roycroft  v.  Tayntor,  68 
206,   11   Am.   St.   Rep.   367.  Vt.  219,  35  A.  53,  33  L.  R.  A.  225, 

2.  Salter  v.  Howard,  43  Ga.  601 ;        54  Am.  St.  Rep.  882. 

Sykes  v.  Dixon,  9  Ad.  &  El.  244.  4.  Bradford  Corporation  v.  Pick- 
See,  also,  Rice  v.  Manly,  66  N.  Y.  les  (1895),  A.  C.  587;  Phelps  v. 
82,  23  Am.  Rep.  30;  Gunter  v.  As-  Xowlin,  72  N.  Y.  3D,  28  Am.  Rep. 
tor,  4  J.  B.  Moore,  12;  Glass  Co.  v.  03  and  note;  Acton  v.  Blundell,  12 
Binney,  4  Pick.  (Mass.)  425;  Com-  :\rees.  &  Wei.  324;  Orr  v.  Ins.  Co., 
pare  Hart  v.  Aldridge,  Cowp.  54;  12  La.  Ann.  255;  Wheatly  v.  Baugh, 
Green  v.  Button,  2  Cromp.  M.  &  R.  25  Pa.  St.  528,  64  Am.  Dec.  721  and 
707 ;  Harvester  Co.  V.  Meinhardt,  24  note;  Chatfield  v.  Wilson,  28  Vt. 
Hun  (N.  Y.),  489;  Benton  v.  Pratt,  49;  South  Royalton  Bank  v.  Bank, 
2  Wend.  (N.  Y.)  385,  20  Am.  Dec.  27  Vt.  505;  Howard  v.  Benton,  32 
623  and  note.  Vt.    724;    Bradley    v.    Fuller,    118 

3.  Flood  V.  Jackson  (1895),  2  Alass.  239;  Hunt  v.  Simonds,  19 
Q.  B.  21.  See,  also,  Doremus  v.  :V[o.  583;  Jenkins  v.  Fowler,  24  Pa. 
Hennessy,  62  111.  App.  391,  176  HI.  St.  308;  Glendon  Iron  Co.  v.  Uhler, 
008,  52  N.  E.  924,  54  N.  E.  524,  43  75  Pa.  St.  467,  15  Am.  Rep.  599; 
L.  R.  A.  797,  68  Am.  St.  Rep.  203;  J?radford  v.  Pickles    (1895),  1  Ch. 

405 


§§    345-348  OPEBATION    OF    CONTEACTS.  Oil.    14 

that  bold  a  contrary  doctrine.  Thus,  if  a  party  dig  a  well  on 
his  own  land  for  the  sole  purpose  of  inflicting  damages  upon 
his  neighbor  who  has  a  right  to  a  spring,  he  will  be  liable,^  which 
is  the  rule  of  the  civil  and  not  of  the  common  law.^ 

§  346.  Fraudulent  representations. —  Where  a  contract 
would  have  been  fulfilled  but  for  false  and  fraudulent  repre- 
sentations of  a  third  person,  an  action  for  damages  will  lie 
against  such  person,  although  the  contract  could  not  have  been 
enforced.'  An  action  will  lie  by  a  party  to  a  contract  against 
a  third  person  for  fraudulent  representations  by  the  latter,  in- 
ducing the  other  party  to  the  contract  to  break  it.^ 

§  347.  To  sustain  an  action  the  discharge  must  take  place. 
— ^An  act  done  or  attempt  made  by  a  third  party  with  the  malic- 
ious intent  to  procure  such  a  discharge,  but  not  successful  in 
procuring  it,  will  not  support  an  action  brought  for  maliciously 
procuring  the  discharge.  The  actual  procurement  of  the  dis- 
charge is  an  essential  to  such  an  action.^  If  the  servant  is  not 
discharged,  but  voluntarily  leaves  the  employment  on  account 
of  the  conduct  of  the  party  charged  with  having  procured  his 
discharge,  the  action  cannot  be  maintained.^" 

§  348.  As  to  privity  of  the  parties  —  Negligence. —  Where 
there  is  no  question  of  agency  or  assignment  of  a  contract,  a 

145;  Hague  v.  Wheeler,  157  Pa.  St.  8.  Rice  v.  Manley.   66   N.  Y.   82, 

424,  27  A.  714;  Chasemore  v.  Eich-  23  Am.  Rep.  30;   Ashley  v.  Dixon, 

ards,  7  H.  L.  Cas.  349,  387  48  N.  Y.  430,  8  Am.  Rep.  559. 

5.  Chesley  v.  Kinor.  74  Me.  104,  9.  Chipley  v.  Atkinson,  23  Fla. 
43  Am.  Rep.  5G9;   Flalieity  v.  Mo-  206,  11  Am.  St.  Rep.  367. 

ran,  81  Mich.  52,  45  N.  W.  381,  8  10.  Chipley  v.  Atkinson.  23  lla. 

L.    R.    A.    183,    21    Am.    St.    Rep.  206,  11  Am.  St.  Rep.  367.     See,  also, 

510.  Reynolds  v.  Everett,  144  N.  Y.  189, 

6.  Pingrey  on  Real  Prop.  230,  39  N.  E.  72;  People  v.  Hughes,  137 
231.  N.  Y.  29,  32  N.   E.  1105;  People  v. 

7.  Benton  v.  Pratt,  2  Wend.  (N".  Barondess,  133  N.  Y.  649,  31  N.  E. 
Y.)  385,  20  Am.  Dec.  623  and  note;  240. 

Green  v.  Biilton,  2  Cromp.  :M.  &  R. 
707. 

406 


Cll.    14  CONTBACTUAI.    RELATIONS.  §    348 

stranger  caunot  acquire  any  rights  under  it.  Where  there  is 
a  contract  between  two  parties,  and  a  third  party  is  a  mere 
stranger  and  is  not  in  privity  with  either  of  the  contracting 
parties,  and  the  contract  is  not  made  for  his  benefit,  the  third 
party  has  no  rights  under  it  and  cannot  claim  any  benefits.^ 

It  is  not  every  promise  made  by  one  to  another,  from  the 
performance  of  Avhich  a  benefit  may  ensue  to  a  third,  which 
gives  a  right  of  action  to  such  third  person,  he  being  neither 
privy  to  the  contract  nor  to  the  consideration.  The  contract 
must  be  made  for  his  benefit,  as  its  object,  and  he  must  be  the 
party  intended  to  be  benefited.^  The  rule  is  not  so  far 
extended  as  to  give  to  a  third  person,  who  is  only  indirectly  and 
incidentally  benefited  by  the  contract,  a  right  to  sue  upon  it. 
But  the  name  of  the  person  to  be  benefited  by  the  contract  need 
not  be  given,  if  he  is  otherwise  sufficiently  described  or  desig- 
nated. He  may  be  one  of  a  class  of  persons,  if  the  class  is  suf- 
ficiently described.^ 

In  every  case  in  which  an  action  has  been  sustained  there 
has  been  a  debt  or  duty  owing  by  the  promisee  to  the  party 
claiming  to  sue  upon  the  promise.  Whether  the  decisions  rest 
upon  the  doctrine  of  agency,  the  promisee  being  regarded  as  the 
agent  of  the  third  party,  who,  by  bringing  his  action  adopts  his 
acts,  or  upon  the  doctrine  of  a  trust,  the  promisor  being  regarded 
as  having  received  money  or  other  thing  for  the  third  party,  is 
not  material.  In  either  case  there  must  be  a  legal  right  founded 
upon  some  obligation  of  the  promisor,  in  the  third  party,  to 
adopt  and  claim  the  promise  so  made  for  his  benefit.* 

1.  Martin  v.  Peet,  92  Hun,  133,  25  Am.  Rep.  195;  Wright  v.  Terry, 
36  N.  Y.  S.  554;  71  N.  Y.  St.  725;  23  Fla.  160;  Austin  v.  Seligman, 
Fenden  v.  Kelly,  58  HI.  App.  283;  18  Fed.  Rep.  519;  Burton  v.  Lar- 
Insurance  Co.  v.  Water  Co.,  42  Mo.  kin,  36  Kan.  246,  13  P.  308.  59 
App.  118;  Howesmon  v.  Water  Co.,  Am.  Rep.  541. 

119  Mo.   304,  24  S.  W.   784.  23  L.  3.  Burton    v.    Larkin,    36    Kan. 

E.  A.  146  and  note,  41  Am.  St.  Rep.  246.   13  P.  398,  59  Am.  Rep.  541 ; 

654;  Freeman  v.  Railroad  Co..  173  Johannes  v.  Ins.  Co.,  66  Wis.  50.  27 

Pa.  St.  274,  33  A.  1034.  X.  W.  414,  57  Am.  Rep.  249. 

2.  Simon  v.  Brown.  68  N.  Y.  355;  4.  Vrooman  v.  Turner.  69  X.  Y. 
Vrooman  v.  Turner,  69  X.  Y.  280,  280,  25  Am.  Rep.   195.     See,  also, 

407 


§§    348,  349  OPERATION    OF    CONTEACTS.  CJl.    14 

Thus,  where  a  party  after  agreeing  to  improve  and  sell  de- 
fendant's lots,  and  with  the  proceeds  pay  for  the  lots,  agrees  to 
pay  a  third  party  commission  for  making  the  sale,  defendant  is 
not  liable  for  such  commission,  as  there  is  no  privity  of  con- 
tract.^ 

And  this  principle  is  illustrated  in  the  case  of  an  action  for 
negligence.  So  the  acceptance  of  a  thing  sold,  by  the  vendee, 
except  under  special  circumstances,  relieves  the  vendor  from 
liability  to  a  stranger  for  an  injury  resulting  to  him  from  the 
negligent  manufacture  or  construction  of  the  thing  sold.  Neg- 
ligence to  be  actionable  must  occur  by  breach  of  a  legal  duty 
arising  out  of  a  contract  or  otherwise  owing  to  the  person  sustain- 
ing the  loss.  In  such  case  there  is  no  privity  of  contract  between 
the  manufacturer  and  the  stranger,  and  hence  the  third  party 
is  without  remedy,  for  the  negligent  manufacture  of  the  article 
sold  to  the  vendee.^ 

At  common  law  a  death  of  person  by  negligence  or  wrongful 
act  gave  no  right  of  action.  And  so  where  an  employer  con- 
tracts with  his  employe  to  protect  him  from  the  wrongful  acts 
of  strikers,  and  the  employe  is  killed  by  them,  no  action  sur- 
vives, and  the  employer  is  not  responsible.^ 

§  349.    Water  companies  —  Rights  of  third  persons. —  The 

owner  of  property  which  has  been  destroyed  by  fire  cannot  main- 
tain an  action  to  recover  damages  from  a  water  company,  on  the 
ground  that  the  property  was  destroyed  by  the  failure  of  the 

Lawrence   v.    Fox,    20    N".   Y.    268;  27  L.  R.  A.  583,  11  C.  C.  A.  253,  24 

Howsmon   v.    Water    Co.,    119    Mo.  U.  S.  App.  7;   Standard  Oil  Co.  v. 

304,  24  S.  W.  784,  23  L.  R.  A.  146  Murry,    119    Fed.    Rep.    572,    57    C. 

and  note.  C.  A.  1,  35  Chi.  L.  News,  71;  Brag- 

5.  Crawford  v.  Brown,  21  Colo.  don  v.  Perkins-Campbell  Co..  87 
272,  40  P.  692.  See,  also,  Lewis  Fed.  Rep.  109,  30  C.  C.  A.  567,  58 
V.  Land  Co.,  124  Mo.  672,  28  S.  W.  U.  S.  App.  91;  Necker  v.  Harvey, 
324.  49  Mich.  517,  14  N.  503. 

6.  Savings  Bank  v.  Ward,  100  7.  Lewis  v.  Coal  Co.,  112  Ky. 
U.  S.  195;  Hill  v.  Lane,  37  N.  J.  845,  66  S.  W.  1044.  See  56  Cent. 
L.     5;      Goodlander     Mill     Co.     v.  L.   J.   365. 

Standard  Oil  Co.,  63  Fed.  Rep.  400, 


408 


Ch.     14  CONTRACTUAL    ItKLATIONS.  §    349 

water  company  to  furnish  a  supply  of  wator  as  required  by  the 
terms  of  its  contracts  with  the  town,  since  there  is  no  privity 
of  contract  between  the  parties  to  the  action,^  And  the  fact 
that  the  ordinance  granting  the  franchise  requires  the  company 
to  supply  the  city  and  its  inhabitants  with  sufficient  water  to 
put  out  fires,  or  to  maintain  the  water  at  a  certain  pressure,  does 
not  create  the  necessary  privity  of  contract.^ 

But  where  the  statute  requires  that  every  action  must  be 
prosecuted  in  the  name  of  tlie  real  party  in  interest,  it  has  been 
held  in  Kentucky  that  when  the  contract  of  a  water  company 
with  a  city  declares  that  it  is  made  for  the  benefit  of  the  in- 
habitants, and  for  the  protection  of  private  property  against 
destruction  by  fire,  the  owner  of  the  property  which  is  taxed  for 
water  rent,  and  is  destroyed  by  fire  through  the  failure  of  the 
company  to  supply  a  sufficient  quantity  of  water  to  extinguish 
the  same,  may  in  his  own  name,  sue  the  company  on  its  con- 
tract with  the  city.^ 

And  unless  made  so  by  statute,  a  city  is  not  liable  for  failing 
to  protect  the  inhabitants  against  the  destruction  of  property 

1.  Howsmon    v.    Water    Co.,    119  48,  51   N.  W.  84,  29  Am.  St.  Rep. 

Mo.  304,  24  S.  W.  784,  23  L.  R.  A.  856  j    House   v.    Water    Works,    88 

146  and  note,  41  Am.  St.  Rep.  654;  Tex.  233,  31  S.  W.  179,  28  L.  R.  A. 

Insurance    Co.    v.    Water    Co.,    42  532;  Kansas  City  v.  O'Connell,  99 

Mo.    App.     118;     Davis    v.    Water  Mo.    357,    12    S.   W.    791;    Mott   v. 

Works,  54  Iowa,   59,   6  N.   126,   37  Water  Co.,  48  Kan.  12,  28  P.  989, 

Am.   Rep.    185;    Nickerson   v.    Hy-  15  L.  R.  A.  375,  30  Am.  St.  Rep. 

draulic   Co.,   46   Conn.   24,   33   Am.  267. 

Rep.   1   and  note;   Ferris  v.  Water  2.  Fowler   v.   Water   Works   Co., 

Co.,  16  Nev.  44,  40  Am.  Rep.  485;  S3   Ga.   219,   9   S.   E.   673,   20  Am. 

Fowler  v.  Water  Works  Co.,  83  Ga.  St.  Rep.  313;  Eaton  v.  Water  Works 

219,  9  S.  E.  673,  20  Am.  St.  Rep.  Co.,  37  Neb.  546,  56  N.  W.  211,  21 

313;  Atkinson  v.  Water  Works  Co.,  L.  R.  A.  653,  40  Am.  St.  Rep.  510; 

L.  R.  2  Exch.  441;  Eaton  v.  Water  Britton    v.    Water    Works    Co.,    81 

Works     Co.,  37  Neb.  546,  56  N.  W.  Wis.  48,  51  N.  W.  84,  29  Am.  St. 

291,   21   L.  R.  A.   653,   40  Am.   St.  Rep.  856. 

Rep.    510;     Wainwn'fflvt    v.    Water  3.  Paduca    Lum.    Co.    v.    Water 

Works  Co.,  78  Hun,  146,  28  N.  Y.  Co.,  89  Ky.  340,  12  S.  W.  554,  l-*? 

S.  987,  60  N.  Y.  St.  204;  Foster  v.  S.  W.  249,  7  L.  R.  A.  77,  25  Am. 

Water  Co.,  3  tea  (Tenn.),  42;  Brit-  St.  Rep.  536. 
ton  V.  Water  Works  Co.,  81   Wis. 

409 


§§    349,  350  OPERATION    OF    CONTRACTS.  Ch.     14 

by  fire.*  And  the  business  to  furnish  water  to  extinguish  fire 
does  not  authorize  the  owner  of  property  destroyed  thereby  to 
maintain  an  action  of  tort,  since  a  non-breach,  by  omission 
only,  of  a  contract  entered  into  with  the  public,  is  not  a  tort, 
either  direct  or  indirect,  to  the  private  property  of  an  indi- 
vidual.^ 

Not  even  will  a  statute  requiring  the  pipes  to  be  kept  charged 
at  a  certain  pressure  give  a  citizen  a  right  of  action.^ 

The  owner  cannot  maintain  an  action,  even  though  the  city 
has  raised  by  taxation  a  special  fund  to  which  the  planitiff  con- 
tributed, to  pay  for  a  sufficient  supply  of  water  for  use  in  case 
of  fire;^  nor  if  the  citizens  pay  a  special  tax  to  tBe  company, 
under  its  contract  with  the  city.* 

§  350.  Assignment  by  city  of  contract. —  A  city  has  no  such 
interest  in  the  property  destroyed  as  to  give  it  a  right  of  action 
against  the  water  company,  and  therefore,  the  owner  of  the 
property  destroyed  cannot  maintain  an  action  against  the  com- 
pany as  assignee  of  the  right  of  action  of  the  city.^  And  a 
municipality  has  no  power  to  contract  by  ordinance  or  otherwise 
with  an  individual  or  company,  to  indemnify  a  citizen  and 
taxpayer  for  damages  wdiich  he  may  sustain  by  reason  of 
a  failure  to  furnish  water  as  provided  in  tlie  contract,  so  as  to 
enable  the  citizen  to  maintain  an  action  therefor  in  his  own 
name;  nor  is  such  power  conferred  by  a  statute  authorizing 
cities  to  contract  for  the  building  and  operation  of  waterworks 
by  individuals  or  companies.^ 

4.  Wright  V.  Augusta,  78  Ga.  146  and  note,  41  Am.  St.  Rep.  654. 
241,  6  Am.   St.  Rep.  256.  1.  Ferris  v.  Water  Co.,   16  Nev. 

5.  Fowler   v.    Water   Works    Co.,        44,  40  Am.  Rep.  486. 

83  Ga.   219,   9   S.   E.   673,   20  Am.  2.  Vanhorn    v.    Des    Moines.    63 

St.  Rep.  313.  Iowa,  447,  19  N.  293,  50  Am.  Rep. 

6.  Atkinson  v.  Water  Works  Co.,  750;  Becker  v.  Water  Works,  79 
2  Exch.  441.  Iowa,   419,   44   N.   W.   694,   18   Am. 

7.  Becker  v.  Water  Works,  79  St.  Rep.  377  and  note;  Mott  v. 
Iowa,  419,  44  N.  W.  694,  18  Am.  Water  Works,  48  Kans.  12,  28  P. 
St.  Rep.  377  and  note.  989,     15  L.  R.  A.  375,  30  Am.  St. 

8.  Howsmon  v.  Water  Co.,  119  Rep.  267;  Ins.  Co.  v.  Water  Co.,  42 
Mo.  304,  24  S.  W.  784,  23  L.  R.  A.  Mo.  App.   118. 

410 


Cli.    14  OONTEACTUAI.    RELATIONS.  §    ^51 

§  351,  No  privity  of  parties  or  of  consideration. —  Before  a 
third  party  can  avail  himself  of  a  condition  in  a  contract  be- 
tween two  others,  he  must  show  that  it  was  made  for  his  benefit 
as  its  object,  and  that  he  was  the  party  intended  to  be  benefited.^ 
Thus,  a  manufacturing  company,  for  a  bonus,  contracted  to  con- 
struct its  plant  on  a  land  company's  land,  and  to  maintain  it 
there  for  a  certain  time.  The  land  company,  to  raise  the 
bonus,  sold  lots,  conditioned  on  the  plant  being  placed  on  certain 
ground.  Under  the  circumstances  the  purchasers  of  the  lots 
were  not  parties  to  the  contract  requiring  the  maintenance  of 
the  plant  for  a  certain  time,  so  as  to  authorize  them  to  rescind 
the  purchases,  because  the  plant  was  abandoned  after  construc- 
tion.^ The  location  of  the  plant  having  been  secured,  the  fact 
that  the  requisite  number  of  lots  was  not  sold,  or  the  full 
amount  of  bonus  was  not  paid,  is  not  a  sufficient  around  for  the 
rescission  of  notes  given  in  completion  of  the  contracts  for  the 
sale  of  the  lots,  as  the  latter  conditions  were  merely  minor  mat- 
ters conducing  to  the  location  of  the  plant  ;^  and  this  is  especially 
so  as  the  lot  purchasers  derived  no  benefit  whatever  from  the 
performance  of  the  minor  conditions,  except  as  they  caused  the 
location  of  the  plant.^  Because,  if  the  end  to  be  obtained  has 
been  secured,  and  if  the  contract  has  been  substantially  per- 
formed, minor  matters  and  measures  conducing  thereto,  which 
are  means  and  conduits  to  that  end,  although  they  remain  to 
some  extent  unperformed,  will  be  disregarded.^ 

1.  Safe  Co.  V.  Ward,  46  N.  J.  L.  4.  Conn  v.  McCollongh,  12  :\rn. 
19;  Lampert  v.  Gas  Light  Co.,  14  App.  356;  Railroad  Co.  v.  Tygard, 
Mo.  App.   383;    Simpson  v.  Bro%vn,        84  Mo.  264,  54  Am.  Rep.  97;   Peo- 

68  N.  Y.  355;   Vrooman  v.  Turner,  pie  v.   Holden,   82    111.   93:    Bridge 

69  N.  Y.  280,  25  Am.  Rep.  195;  Co.  v.  Pomroy,  15  Pa.  St.  151; 
Burton  v.  Larkin,  36  Kan.  246,  13  CouTtA\Tight  v.  Deeds,  37  Iowa. 
P.  398,  59  Am.  Rep.  541;  Land  Co.  503;  Railroad  Co.  v.  Stockton,  51 
V.  Pitt,  114  Mo.  135,  139,  21  S.  W.  Cal.  334;  State  v.  Hastings,  24 
449.  Minn.   78;    Holmes  v.   Oil   Co..   138 

2.  Lewis  V.  Land  Company,  124  Pa.  St.  546,  21  A.  231  21  Am.  St. 
Mo.  672,  28  S.  W.  324.  Rep.   919:    Jackson  v.   Stookbridge, 

3.  Lewis   V.   Land   Company,   124  29  Tex.  394,  94  Am.  Dec.  290. 

Mo.  672,  28  S.  W.  324.  5.  Lewis   v.    Land    Co..    124   Mo. 

672.  28  S.  W.  .124. 

411 


§    352  OPERATION    OF    CONTKACTS.  Cll.    14 

ARTICLE  II. 

Promise  for  the  Beneft  of  a  Third  Person. 

Section  352.  When  Third  Person  May  Become  a  Party  to  a  Contract. 

353.  Assumption  of  Mortgage  Debt — Right  of  Mortgagee  to  Sue. 

354.  Must  be  Something  More  Than  a  Mere  Promise. 

355.  Acceptance  by  Tliird  Person. 

356.  Contract  for   Benefit  of   Third   Person — Modification   of   the 

General  Rule. 

357.  Exceptions  to  the  Modified  Rule. 

358.  Party  to  the  Consideration — Trust. 

359.  Promisee  as  Agent. 

360.  English  Doctrine. 

361.  Next  of  Kin— Right  to  Sue. 

362.  Covenants. 

363.  Covenants — Another  Rule. 

364.  Who  May  Bring  Suit  on  Simple  Contract. 

365.  Description  of  the  Debts. 

366.  Agreement  to  Save  Harmless. 

367.  Many  Promisors — Suit  Against. 

§  352.  When  a  third  person  may  become  a  party  to  a  con- 
tract.—  The  general  rule  is  that  in  order  that  a  promise  made 
bj  one  person  to  another,  for  the  benefit  of  a  third  person,  shall 
constitute  the  first  a  debtor  of  a  third,  and  entitle  the  latter  to 
sue  the  first  on  such  promise,  it  must  appear  that  there  was  a 
clear  intent  upon  the  part  of  the  parties  to  the  contract  that  the 
first  person  shall  become  such  debtor.  The  mere  fact  that  the 
third  party  may  be  benefited  is  not  sufl&cient.^ 

1.  State  V.  Railroad  Co.,  125  Mo.  v.  Ins.  Co.,  56  Minn.  38,  57  N.  W. 

698,  28  S.  W.  75;  Ellis  v.  Harrison,  314,  45  Am.  St.  Rep.  438  and  note; 

104  Mo.  270,  16  S.  W.  198;  Bank  v.  Barneft  v.   Pratt,   37   Neb.   349,  55 

Benoist,     10    Mo.     521;     Meyer    v.  N.   W.    1050;    Gifford   v.    Corrigan, 

Lowell,   44   Mo.    328;    Howsmon   v.  117  N.  Y.  257,  22  N.  E.  756,  6  L. 

Water  Co.,  119  Mo.  304,  24  S.  W.  R.    A.    610    and    note,    15    Am.    St. 

784,  23  L.  R.  A.   146  and  note,  41  Rep.    508:    McDowell    v.    Laev,    35 

Am.  St.  Rep.  654;  Wright  v.  Terry,  Wis.  171;   Bohanan  v.  Pope,  42  Me. 

23    Fla.    160,    2    So.    6;    Simson   v.  93;    Wood   v.    Moriarity,    15    R.    I. 

Brown,   68    N.    Y.    355;    Merrill    v.  518,   9  A.   427;   Mason  v.   Hall,   30 

Green,  50  N.  Y.  270 ;  Turk  v.  Ridge,  Ala.    599;    Brice   v.   King,    1    Head 

41    N.    Y.    201;    Lovejoy   v.    Howe,  (Tenn.),   152;    Allen   v.   Thomas,   3 

55  Minn.  353,  57  N.  W.  57;  Barnes  Met.    (Ky.)    198,  77  Am.  Dec.  169; 

412 


Ch.  14 


CONTR-VCTUAL    ILEI.ATIONS. 


§  352 


Thus,  where  a  debtor  assigus  his  property  to  a  purchaser  who, 
in  consideration  thereof,  agrees  to  pay  the  claim  of  the  credi- 
tors of  the  assignor,  such  creditors  may  sue  the  purchaser  di- 
rectly upon  his  agreement.^  And  so,  where  a  wife  has  separ- 
ated from  her  husband,  and  the  brother  of  the  wife  executes  a 
mortgage  for  a  consideration  to  the  husband  to  support  the  wife, 
the  wife  may  claim  the  benefit  from  the  mortgage.^ 

The  third  person  must  be  legally  competent  to  receive  the 
thing  or  benefit,  and  perform  his  part,^  and  receive  the  benefit 
with  full  knowledge,^  and  take  the  entire  benefit  or  nothing,® 
and  if  fraudulent  the  acceptance  must  include  the  fraud  and 
the  consequences.' 

If  a  party  promises  the  father  that  if  he  will  let  him  name 
the  child  of  the  former  he  will  pay  the  child  money,  and  the 
request  is  granted,  the  child  can  reecover  on  such  contract  f  and 


Ballas  V.  Fogely,  19  Pa.  St.  273; 
Joslin  V.  Car  Spring  Co.,  36  N.  J.  L. 
141 ;  Kauffman  v.  Cooper,  46  Neb. 
644,  65  X.  W.  796;  Pugh  v.  Barnes, 
108  Ala.  167,  19  So.  370;  Knott  v. 
Railroad  Co.,  84  Iowa,  462,  51  N. 
W.  57 ;  First  Nat.  Bank  v.  Rowley, 
92  Iowa,  530,  61  N.  W.  195;  Cramp- 
ton  V.  Ballard,  10  VI.  251;  Babeock 
V.  Cbase,  92  Hun,  264,  36  N.  Y.  S. 
879,  72  N.  Y.  St.  4D1;  Coleman  v. 
Whitney,  62  Vt.  123,  20  A.  322,  9 
L.  R.  A.  517;  Maxfield  v.  Schwartz, 
43  Minn.  221,  45  N.  W.  429;  Hen- 
drick    V.    Lindsay,    93    U.    S.    143; 

Steene  v.  Aylesworth,  18  Conn.  244; 

Flint  V.  Cadenasso,  64  Cal.  83,  28 

P.   62  Hecht  v.  Caughron,  46  Ark. 

135;    Devol    v.    Mcintosh,    23    Ind. 

529;    Jones   v.    Thomas,    21    Gratt. 

(Va.)     96;     Brown    v.    O'Brien,    1 

Rich.   (S.  Car.)  L.  268,  44  Am.  Dec. 

254;    Burr  v.  Beers,  24  N.  Y.   178, 

80  Am.  Dec.  327  and  note;  Cook  v. 

Berrott,  66  Hun,  633,  21  N.  Y.  S. 

358;    Bassett   v.    Hughes,    43    Wis. 


319;    Bristow  v.  Lane,  21   111.   194; 
Urquhart  v.  Brayton,  12  R.  I.  169. 

2.  Maxfield  v.  Schwartz,  43  Minn. 
221,  45  N.  W.  429:  Lovejoy  v. 
Howe,  55  Minn.  353,  57  N.  W.  57. 

3.  Coleman  v.  Whitney,  62  Vt. 
123,  20  A.  322,  9  L.  R.  A.  517. 

4.  McCraeken  v.  San  Francisco, 
16  Cal.  591;  Ashbury,  etc.  Co.  v. 
Riche,  7  H.  L.  653,  674.  See  "Con- 
tracts for  the  Benefit  of  Thiid 
Persons." — 15  Harv.  L.  Review,  767. 

5.  Rowan  v.  Hyatt,  45  N.  Y.  138; 
Clark  V.  Lyon,  7  Nev.  75;  Dickin- 
son V.  Conway,  12  Allen  (Mass.), 
487 ;  Lime  Co.  v.  Green,  L.  R.  7 
C.  P.  43. 

6.  Southern  Express  Co.  v.  Pal- 
mer, 48  Ga.  85 ;  Henderson  v.  Cum- 
mings,   44   111.   325. 

7.  Cranz  v.  Hunter,  28  N.  Y.  389 
Law  V.  Grant.  37  Wis.  548;  Com- 
pare Brook  V.  Hook,  L.  R.  6  Exch. 
89. 

V.    Libbey,    165    Mass. 
E.    1127,    52    Am.    St. 


8.  Eaton 
218,  42  N. 
Rep.  511. 


413 


§§  352,  353 


OPERATION    OF    CONTRACTS. 


Oil.    14 


the  same  rule  applies  where  a  child's  name  is  changed  hy  re- 
quest of  a  third  j)artj.^ 


§  353-  Assumption  of  mortgage  debt  —  Right  of  mortgagee 
to  sue. —  When  the  purchaser  of  mortgaged  lands  assumes  the 
mortgage  debt  and  agrees  to  pay  it  as  a  part  of  the  consideration, 
the  mortgagee  can  sue  him  for  the  debt,  though  some  of  the 
decisions  hold  that  the  suit  must  be  brought  in  equity.^ 

The  purchaser,  by  accepting  the  estate  conveyed,  must  as  a 
matter  of  law  be  presumed  to  have  agreed  to  pay  the  notes  se- 
cured upon  it ;  for  he  does  not  simply  buy  the  estate  subject  to 
the  mortgage,  but  impliedly  assumes  to  pay  the  mortgage  as  a 
part  of  the  consideration.^ 

The  contract,  being  implied,  is  not  within  the  statute  of 
frauds ;  and  not  being  under  seal,  may  be  enforced  by  an  action 
of  assumpsit.^  The  agreement  implied  between  the  purchaser 
and  the  mortgagor  inures  to  the  benefit  of  the  mortgagee,  so  as 
to  enable  the  mortgagee,  as  is  generally  held,  to  sue  the  pur- 
chaser of  the  mortgaged  premises  directly,  as  there  is  thus  a 
privity  of  contract  established.* 


9.  Babcock  v.  Chase,  92  Hun, 
264,  36  N.  Y.  S.  879,  7'2  N.  Y.  St. 
401. 

1.  Pingrey  on  Mort.  1028-1031, 
and  cases  cited;  Winn  v.  Invest- 
ment Co.,  125  Mo.  528,  28  S.  W. 
998. 

2.  Braman  v.  Dowse,  12  Cush. 
(Mass.)  227;  Pike  v.  Brown,  7 
Cush.  (Mass.)  133;  Furnas  v.  Dur- 
gin,  119  Mass.  500,  20  Am.  Rep. 
341;  Crawford  v.  Edwards  33  Mich. 
354;  Thorp  v.  Coal  Co.,  47 
Barb.  (N.  Y.)  439;  Gifford  v.  Cor- 
recan,  Il7  N.  Y.  257,  27  N.  E.  756, 
6  L.  R.  A.  610  and  note,  15  Am.  St. 
Rep.  508. 

3.  Pike  V.  Brown,  7  Cush. 
(Mass.)  133;  Goodwin  v.  Gilbert, 
9  Mass.  5^10;    Felch  v.  Taylor,    13 


Pick.  (Mass.)  133;  Huff  v.  Nicker- 
son,  27  Me.  106;  Hinsdale  v.  Hum- 
phrey, 15  Conn.  431;  Rawson  v. 
Copland,  2  Sand.  Ch.  (N.  Y.)  251. 
4.  Burr  v.  Beers,  24  N.  Y.  178,  80 
Am.  Dec.  327  and  note;  Lawrence 
V.  Fox,  20  N.  Y.  268 ;  Joslin  v.  Oar 
Spring  Co.,  36  N.  J.  L.  141;  Bas- 
sett  V  Hughes,  43  Wis.  319;  Lamb 
V.  Tucker,  42  Iowa,  118;  Putney  v. 
Farnham,  27  Wis.  187,  9  Am.  Rep. 
459;  Bristow  v.  Lane,  21  111.  194; 
Bohanan  v.  Pope,  42  Me.  93 ;  Brown 
V.  Ins.  Co.,  5  R.  I.  394;  Motley  v. 
Ins.  Co.,  29  Me.  337,  50  Am.  Dec. 
591;  Carnegie  v.  Morrison,  2  Met. 
(Mass.)  381;  Brewer  v.  Dyer,  7 
Cush.  (Mass.)  337;  Pingrey  on 
Mort.  1031,  and  cases  cited;  Com- 
pare  Mellen    v.    Whipple,    1    Gray 


414 


Ch.  14 


CONTRACTUAL    RELATIONS. 


§§  353,354 


And  a  servant  may  sne  the  purchaser  of  his  master's  business 
for  back  wages,  wliich  the  purchaser  assumes  as  part  of  the  price 
of  the  business.^ 


§  354-  Must  be  something  more  than  a  mere  promise. — 
According  to  the  general  rule  it  is  not  sufficient  that  the  per- 
formance of  tlie  promise  may  benefit  a  third  person.  It  must 
be  made  for  his  benefit,  or  at  least  such  benefit  must  be  the 
direct  result  of  performance  and  so  within  the  contemplation  of 
the  parties,  and  in  addition,  the  grantor  must  have  a  legal  in- 
terest that  the  promise  be  performed  in  favor  of  the  party 
claiming  performance.^ 

If  one  party  promises  to  do  something  for  the  benefit  of  a 
stranger  to  the  contract,  there  being  nothing  but  the  promise, 
and  no  consideration  from  the  stranger,  and  no  duty  or  obli- 
gation to  him  on  the  part  of  the  promisee,  the  third  party  cannot 
recover    upon  such  promise.^ 

Where  a  debt  already  exists  from  one  person  to  another,  a 
promise  by  a  third  person  to  pay  such  debt,  inures  only  to  the 
debtor,  and  the  original  creditor  can  bring  no  action  against 
the  promisor  to  collect  such  debt.^ 

Where  a  promise  is  made  by  one  person  to  another  for  the 
benefit  of  a  third,  in  the  absence  of  any  liability  of  the  promisee 
to  such  third  person,  the  latter  cannot  enforce  it,*  and  if  a 


(Mass.),  317;    Crowell   v.   Currier, 
27  N.  J.  Eq.  152. 

5.  Barnett  v.  Praff.  37  iSTeb.  349. 
55  X.  W.   1050. 

1.  Gornsey  v.  Rogers,  47  N.  Y. 
233.  7  Am.  Rep.  440;  Vrooman  v. 
Turner.  69  N.  Y.  280.  25  Am.  Rep. 
195;  Lorillard  v.  Clyde,  122  N.  Y. 
498,  2^  N.  E.  017,  lU  L.-  R.  A.  113; 
Burnherr  v.  Rau.  135  N.  Y.  210. 
32  N.  E.  49 ;  this  limits  Lawrence  v. 
Fox,  20  K  Y.  268. 

2.  Jefferson  v.  Asoh,  53  Minn. 
446.  39  Am.  St.  Rep.  618,  55  X.  W. 
604,  25  L.  R.  A.  5o7  and  note.     See. 


also.  Wheat  v.  Rice,  97  N.  Y.  302 ; 
Clark  V.  Howard,  74  Hun  (N.  Y.), 
228.  26  X.  Y.  S.  62D.  56  X.  Y.  St. 
322. 

3.  Bank  v.  Grand  T^dge,  98  U. 
S.  123. 

4.  Townsend  v.  xvockham,  143  N. 
Y.  516.  58  X.  E.  731;  Coleman  v. 
Hiler,  85  Hun  (N.  Y.).  547,  33  N. 
Y.  S.  357 ;  Linncman  v.  ^foross,  98 
'SUch.  178,  57  X.  W.  103,  .39  Am.  St. 
Rep.  528  and  note;  Jackson  Iron 
Co.  V.  Concentration  Co.,  65  Fed. 
Rep.  298,  12  C.  C.  A.  636,  31  U.  S, 
App.  I. 


415 


§§  354-356  opeejVtion  of  contracts.  Cli.   14r 

stranger  incidentally  receives  a  benefit  from  the  promise  he 
cannot  enforce  it.^ 

§  355-  Acceptance  by  third  person. —  Where  a  party  for 
whose  benefit  a  contract  has  been  made  is  a  minor,  it  is  not 
necessary  that  he  should  accept  the  same  as  the  law  puts  in  an 
acceptance  for  him.^  If  the  third  party  is  an  adult,  a  subsequent 
bringing  of  an  action  based  on  the  contract  is  a  sufficient  ac- 
ceptance of  the  same.^ 

The  parties  to  the  contract  can  mutually  rescind  it  at  any 
time  before  acceptance  by  the  third.^  After  acceptance,  tlie 
rescission  requires  the  concurrence  of  the  third.* 

§  356.  Contract  for  benefit  of  third  person  —  Modification 
of  gereral  rule. —  In  some  of  the  States  the  general  rule  is 
modified.  Several  States  hold  that  a  person  who  is  not  a  party 
to  a  simple  contract,  and  from  whom  no  consideration  moves, 
cannot  sue  on  the  contract,  and  consequently  a  promise  made 
by  one  person  to  another,  for  the  benefit  of  a  third  person  who  is 
a  stranger  to  the  consideration,  will  not  support  an  action  by 
the  latter.^  Hence,  when  the  promise  is  to  pay  to  another  an 
existing  indebtedness  of  the  promisee,   upon   a   consideration 

5.  Crandall  v.  Payne,  154  111.  5.  Mellen  v.  Whipple,  1  Gray 
627,  39  N.  E.  601;  Burton  v.  Lar-  (Mass.),  317;  Millard  v.  Baldwin, 
kin,  36  Kan.  246,  13  P.  398,  59  Am.  3  Gray  (Mass.),  484;  Field  v.  Craw- 
Rep.  541;  Second  Nat.  Bank  v.  ford,  6  Gray  (Mass.),  116;  Dow  v. 
Grand  Lodge,  98  U.  S.  123.  Clark,   7   Gray    (Mass.),    198;    Col- 

1.  Copeland  V.  Summers,  138  Ind.  burn  v.  Phillips,  13  Gray  (Mass.), 
219,  35  N.  E.  514,  37  N.  E.  971;  64;  Flint  v.  Pierce,  99  Mass.  68,  96 
Nolte  V.  Libbert,  34  Ind.  163;  Am.  Dee.  691;  Exchange  Bank  v. 
Pruitt  V.  Pruitt,  91  Ind.  595.  Rice,  107  Mass.  37,  9  Am.  Rep.  1 ; 

2.  Copeland  v.  Summers,  138  Rogers  v.  Union  Stone  Co.,  130 
Ind.  219,  35  N.  E.  514,  37  N.  E.  Mass.  581,  39  Am.  Rep.  478; 
971.  Wheeler  v.   Stewart,  94  Mich.  445, 

3.  Amonett  v.  Montague,  75  Mo.  54  N.  W.  172;  Pipp  v.  Reynolds, 
43;  Thompson  v.  Parker,  83  Ind.  20  Mich.  88;  Edwards  v.  Clement, 
96.  81  Mich.  515,  45  N.  W.  1107;  Wil- 

4.  Levistone  v.  Landreaux,  6  La.  bur  v.  Wilbur,  17  R.  I.  295,  21  A. 
Ann.  26.  See,  also,  Grant  v.  Beard,  497 ;  Woodland  v.  Newhall,  31  Fed. 
50  N.  H.  129;  Williams  v.  Butler,  Rep.  434;  Second  Nat.  Bank  v. 
35  111.  .'544.  Grand  Lodge,  98  U.  S.  123;  Adams 

416 


Ch.    14  CONTBACTUAL    RELATIONS.  §§    356,  357 

moving  wholly  from  the  latter,  such  promise  is  for  the  benefit 
of  the  promisee,  the  original  debtor,  and  must  be  released  or 
enforced  by  him." 

§  357.  Exceptions  to  the  modified  rule. —  There  are  excep- 
tions to  this  modified  rule.  Thus,  where  one  person  enters  into 
a  contract  with  another  to  pay  money  to  a  third,  or  to  deliver 
some  valuable  thing,  and  such  third  party  is  the  only  party  in- 
terested in  the  payment  or  the  delivery,  he  can  release  the  prom- 
isor from  performance  or  compel  performance  by  suit.  And 
among  the  exceptions  are  cases  where  the  promise  to  pay  the 
debt  of  a  third  person  rests  upon  the  fact  that  money  or  prop- 
erty is  placed  in  the  hands  of  the  promisor  for  that  particular 
purpose.  Also  where  one  buys  out  a  stock  of  goods  of  a  trades- 
man and  undertakes  to  take  the  place,  fill  the  contracts,  and  pay 
the  debts  of  his  vendor.^  The  right  to  sue  by  the  third  party 
arises  out  of  an  independent  contract  created  by  law^  between 
the  promisor  and  the  third  person.^  And  so  where  a  contractor 
agrees  to  abandon  negotiations  for  the  erection  of  a  building 
and  to  allow  another  to  obtain  the  contract,  there  is  a  sufficient 
consideration  for  the  promise  of  such  other  party  to  pay  a  debt 
owed  by  the  contractor  to  a  third  party ;  and  such  third  party 
can  sue  the  party  promising  to  pay  the  debt  and  legally  collect 
it' 

V.  Kuehn,  119  Pa.  St.  76,  13  A.  184;  2.  Adams  v.  Kuehn,   119  Pa.  St. 

Compare    Carnegie    v.    Morrison,    2  76,  13  A.  184;  Taylor  v.  Taylor,  20 

Met.      (Mass.)      381;      Brewer      v.  111.   650;   Lewis  v.   Sawyer,  44  Me. 

Dyer,  7   Cush.    (Mass.)    337.  332;   Carnegie  v.  Morrison,  2  Met. 

6.  Adams  v.  Kuehn,  119  Pa.  St.  (Mass.)   381;  Putnam  v.  Field,  103 

76,  13  A.  184;  Blymere  v.  Boistle,  Mass.  556;   Wood  v.  Moriarity,  15 

6  Watts    (Pa.),   18S,  31   Am.  Dec.  R.  I.  518,  9  A.  427;   Hostetter  v. 

458.  Hallinger,   117   Pa.   St.   606,   12  A. 

1.  Mellen    v.    Whipple,    1    Gray  741;  Grim  v.  Iron  Co.,  115  Pa.  St. 

(Mass.), 317;  Frost  v.  Gage,  1  Allen  611,  8  A.  595:  O'Neal  v.  Board,  27 

(Mass.),  262;  Putnam  V.  Field,  103  Md.   227;    Hosford  v.   Kanouse,   45 

Mass.  556;  Exchange  Bank  v.  Rice,  Mich.  620.  8  N.  567:  Keene  v.  Sage. 

107    Mass.    43;    Rogers    v.    Union  75  Me.  138. 

Stone  Co.,   130  Mass.   581,   39  Am.  3.  Moore    v.    Nat.    Bank    (Ala.). 

Rep.  478.  36  So.  777. 

417 


§§    358,  359  OPERATION    OF    CONTEACTS.  Cll.    14 

§  358.  Party  to  the  consideration  —  Trusts. — Where  one 
buys  out  the  stock  of  a  tradesman  and  undertakes  to  take  the 
place  and  carry  on  the  business,  paying  debts  and  filling  con- 
tracts of  his  vendor,  and  where  one  receives  money  or  property 
on  the  promise  to  pay  or  deliver  to  the  third  person,  are  case? 
which  create  a  condition  in  which  the  third  person,  although 
not  a  party  to  the  contract,  may  be  fairly  said  to  be  a  party  to 
the  consideration  on  which  it  rests.  In  good  conscience  the 
title  to  the  money  or  the  thing  which  is  the  consideration  of  the 
promise  passes  to  the  beneficiary,  and  the  promisor  is  turned 
in  effect  into  a  trustee.^ 

But  these  cases  hold  that  when  a  promise  is  made  to  and  in 
relief  of  one  to  whom  the  promise  is  made,  upon  a  consideration 
moving  from  him,  no  particular  fund  or  means  of  payment  be- 
ing placed  in  the  hands  of  the  promisor  out  of  which  the  pay- 
ment is  to  be  made,  there  is  no  trust  arising  in  the  promisor  and 
no  title  passing  to  the  third  person.  The  beneficiary  is  not  an 
original  creditor  who  is  a  stranger  to  the  contract  and  the  con- 
sideration, but  the  original  debtor  who  is  a  party  to  both,  and  the 
right  of  action  is  in  him  alone.^ 

But  where  the  promise  is  so  framed  as  to  make  the  promisor 
a  trustee  for  such  third  person,  the  latter  may  enforce  it.^ 

§  359-  Promissee  as  agent. —  These  cases  establishing  the 
modified  doctrine  do  not  permit  the  person,  for  whose  benefit  a 
promise  is  made  to  another  person  from  whom  the  only  con- 
sideration moves,  to  maintain  an  action  against  the  promisor, 
unless  either  the  latter  has  also  made  an  express  promise  to  the 
plaintiff,  or  the  promisee  acts  as  the  plaintiff's  agent  merely.^ 
Where  the  promisee  is  in  fact  acting  as  the  agent  of  a  third 

1.  Adams  v.  Kuehn,  119  Pa.  St.  Pye,  18  Ves.  140;  Davis  v.  Coburn, 
76,  13  A.  184.  128   Mass.    377;    Chase   v.   Chapin, 

2.  Adams  v.  Kuehn,  119  Pa.  St.  130  Mass.  128;  Duncan  v.  Jandon, 
76,  13  A.  184.  15    Wall.     (U.    S.)     165;    Shaw   v. 

3.  Preachers'    Aid    Soc.    v.    Eng-  Spencer,   100  Mass.  321. 

land,  106  111.  125;  Hory  V.  Michael,  4.  Exchange    Bank   v.    Rice,    107 

18   Md.   227.      See,   also.   Ex   parte        Mass.  37,  9  Am.  Rep.  1. 

418 


Ch.    14  CONTRACTUAL    RELATIONS,  §§    359,  360 

person,  although  that  is  unknown  to  the  promisor,  the  prin- 
cipal is  the  real  party  to  the  contract,  and  may  therefore  sue  in 
his  own  name  on  the  promise  made  to  his  agent.^ 

§  360.  English  doctrine. —  The  English  doctrine  is  in  accord 
with  the  modified  rule.  So  in  England  the  rule  does  not  permit 
the  person,  for  whose  benefit  a  promise  is  made  to  another  per- 
son from  whom  the  only  consideration  moves,  to  maintain  an 
action  against  the  promisor,  unless  either  the  latter  has  also 
made  an  express  promise  to  the  plaintiff,  or  the  promisee  acted 
as  the  plaintiff's  agent  merely.^ 

In  equity,  in  England,  where  money  is  payable  to  one  person 
for  the  benefit  of  another,  the  latter  can  claim  under  the  con- 
tract as  if  it  had  been  with  himself.' 

:  If  the  contract  is  so  framed  as  to  make  one  of  the  parties 
trustee  for  a  third  person  for  whose  benefit  it  is  made,  such 
third  person  acquires  rights  by  virtue  of  the  trust.^  Where  a 
transfer  of  property  is  made  with  a  declaration  of  trust  in  favor 
of  a  third  person,  it  must  be  distinguished  from  a  mere  cove- 
nant to  pay  money  to  that  person.® 

But  a  mere  contract  between  two  parties,  that  one  of  them 
shall  pay  money  to  a  third,  does  not,  as  a  rule,  make  the  third 
person  a  cestui  que  trust }^    In  order  to  do  this  there  must  be 

5.  Sims  V.  Bond,  o  Barn.  &  Ad.  411;  Price  v.  Easton,  4  Barn.  &  Ad. 
389,  2  Nev.  &  Man.  608 ;  Huntington  433  ;  Tweddle  v.  Atkinson,  1  Best 
V.    I^ox,    7    Cush.     (Mass.)     371;        &  S.  393. 

Barry  v.   Page,    10   Gray    (Mass.),  7.  Touche  v.  Warehousinu'  Co..  G 

398;  Hunter  v.  Giddings,  97  Mass.  Ch.   App.    671;    Spiller   v.   Skating 

41,  93  Am.  Dec.  54;   Ford  v.  Wil-  Rink,    7    Ch.    Div.    368;    Compare 

liams,  21  How.   (U.  S.)  287;  John-  Eley  v.   Life   Assur.    Co.,    1    Exch. 

son   V.    Welch,    42    W.   Va.    18,   24  Div.  88;   In  re  Empress  Eng.  Co., 

S.   E.   585.     See,  also.   Barber  As-  16  Ch.  Div.  125. 

phalt  Paving  Co.  v.  Denver,  72  Fed.  8.  Murray  v.  Flavell.  25  Ch.  Div. 

Rep.  336,  19  C.  C.  A.  139,  36  U.  S.  89.    See.  also,  Strong  v.  Bird,  L.  K. 

App.  499.  18  Eq.  315. 

6.  Chitfc    on    Cont.    53 :    Sims    v.  9.  Gregory  v.  Williams.  3  Moriv. 
Bond,  5  Barn.  &  Ad.  38^,  2  Nev.  &  582 ;  Lamb  v.  Nice,  6  Mees.  &  Wei. 
Man.  608.     See,  also,  Lilly  v.  Hays,  467 ;  Tomlinson  v.  Gill,  Amb.  330. 
5  Ad.  &  El.  548,  1  Nev.  &  Per.  26;  10.  In  re  Rotheram  Alum  Co.,  25 
Walker  v.  Rostron,  9  Mees.  &  Wei. 

419 


§§    360-362  OPERATION    OF    CONTEACTS.  Ch.    14r 

some  undertaking  by  one  of  the  contracting  parties  to  stand  to 
the  third  person  in  the  relation  of  trustee  to  the  benficiary." 

§  361.  Next  of  kin — Right  to  sue. — It  was  formerly  held 
in  England  that  a  child  might  sue  for  a  promise  made  to  his 
parents  for  the  former's  benefit.^  But  such  doctrine  has  been 
reversed  by  the  English  courts,  so  that  the  next  of  kin  are  now- 
considered  as  mere  volunteers  and  cannot  therefore  sue.^  And  at 
one  time,  in  Massachusetts,  a  child  might  sue  upon  a  promise 
made  for  its  benefit  to  his  father.^  But  this  is  not  the  law  now 
in  this  State;  and  so  a  child  cannot  recover,  on  the  ground  of 
relationship,  upon  a  promise  made  for  his  benefit  to  his  father, 
if  the  consideration  for  such  promise  moves  wholly  from  the 
father  ;*    and  this  seems  to  be  the  general  doctrine.^ 

But  the  nearness  of  the  relationship  may  be  evidence  that 
the  promise  to  the  father  was  made  to  him  acting  in  behalf  of, 
and  as  the  agent  of,  the  son,  and  therefore  may  be  a  promise  to 
the  son ;  but  when  it  appears  that  the  promise  was  not  made  to 
the  son,  and  that  the  consideration  did  not  move  from  him,  the 
nearness  of  the  relationship  cannot  change  the  general  rule  of 
law.^ 

Still  some  of  the  States  hold  that  a  child  can  recover  for  a 
promise  made  for  his  benefit  to  his  parent,  even  if  the  consider- 
ation moves  wholly  from  his  parent.^ 

§  362.  Covenants. — The  general  rule  is  extended,  by  many 
courts,  to  sealed  instruments.     So  where  one  person,  for  a  val- 

Ch.  Div.   103 ;    Eley  v.  Life  Assur.  change  Bank  v.  Price,  107  Mass.  37, 

Co.,  1  Exch.  Div.  20,  88.  9  Am.  Rep.  1. 

11.  Murray    v.    Flavell,    25    Ch.  5.  Hall  v.  Huntoon,   17  Vt.  244, 

Div.  89.  251,    44    Am.    Dec.    332;     Ross    v. 

1.  Dutton  V.  PooTe,  2  Lev.  210;  Milne,  12  Leigh  (Va.),  204,  223,  37 
Bourne  v.  Mason,  1  Vent.  6.  Am.   Dec.   646;    Wilbur   v.   Wilbur, 

2.  Tweddle  v.   Atkinson,    1    Best  17  R.  I.  295,  21  A.  497. 

&  S.  393.  6.  Marston  v.  Bigelow,  150  Mass. 

3.  Felton  v.  Dickinson,  10  Mass.  45,  22  N.  E.  71,  5  L.  R.  A.  43. 
287.  7.  Benze  v.  Hiatt,  82  Ky.  666,  56 

4.  Marston  v.  Bigelow,  150  Mass.  Am.  Rep.  912.  See,  also,  Clark  v. 
45,  22  N.  E.  71,  5  L.  R.  A.  43;  Ex-  McFarland,  5  Dana    (Ky.),  45. 

420 


Ch.    14  CONTRACTUAL    RELATIONS.  §§    362,  363 

liable  consideration,  engages  with  another,  whether  by  simple 
contract  or  by  covenant  under  seal,  to  do  some  act  for  the  bene- 
fit of  a  third  person,  the  latter  may  maintain  an  action  against 
the  promisor  for  breach  of  the  covenant.^  So  where  one  person 
contracts,  whether  with  or  without  seal,  with  another  for  the 
benefit  of  a  third  person,  such  third  person  may  maintain  an 
action  on  the  agreement.^ 

§  363.  Covenants — Another  rule. — But  another  line  of  au- 
thorities holds  that  a  covenant  cannot  be  sued  on  by  the  person 
for  whose  benefit  it  is  made,  if  he  is  not  a  party  to  the  debt,  but 
the  suit  must  be  brought  in  the  name  of  the  person  with  whom 
the  covenant  is  made.^ 

In  regard  to  contracts  under  seal,  in  many  of  the  States,  the 
law  has  always  been  that  only  those  who  were  parties  to  such 
contracts  could  sue  upon  them.*  And  so  a  covenant  cannot  be 
created  to  arise  wholly  in  the  future  between  the  covenantor  and 
a  party  who  at  the  time  is  unascertained,  and  from  whom  no 
consideration  is  to  move,  and  who  is  not  in  any  way  privy  to  any 
present  agreement  by  the  covenantor.^ 

1.  Bassett  v.  Hughes,  43  Wis.  sumpsit  in  his  own  name,  on  the 
319;  McDowell  v.  Laev,  35  Wis.  contract,  whether  the  contract  is 
171;  Gifford  v.  Corrigan,  117  N.  Y.  simple  or  under  seal." — Webster  v. 
257,  22  N.  E.  756,  B  L.  R.  A.  610  Fleming,  178  111.  140,  52  N.  E.  975. 
and  note;  15  Am.  St.  Hep.  508;  3.  Moore  v.  House,  64  111.  162; 
Coster  V.  Pruyn,  43  N.  Y.  399.  Gautzert  v.  Hoge,  73  111.  30;  Dean 

2.  Van  Schaick  v.  Kailroad  Co.,  v.  Walker,  107  111.  540,  47  Am. 
38  N.  Y.  346;  Rogers  v.  Gosnell,  Rep.  467;  Hinckley  v.  Fowler,  15 
51  Mo.  466;  Fitzgerald  v.  Baker,  85  Me.  285;  Cocks  v.  Varney,  45  N.  J. 
Mo.  14;  Ellis  V.  Harrison,  104  Mo.  Eq.  72,  17  A.  108;  Millard  v.  Bald- 
270,  16  S.  W.  198;  State  v.  Rail-  win,  3  Gray  (Mass.),  484;  Seigman 
road  Co.,  125  Mo.  596,  28  S.  W.  v.  Hoffacker,  57  Md.  321;  Hen- 
1074;  Kimball  v.  Noyes,  17  Wis.  dricks  v.  Lindsay,  93  U.  S.  143. 
695;  Webster  v.  Fleming,  178  111.  4.  Sanders  v.  Filly,  12  Pick. 
140,  52  N.  E.  975,  affirming  Dean  (Mass.)  554;  Johnson  v.  Foster,  12 
V.  Walker,  107  111.  540,  47  Am.  Rep.  Met.  (Mass.)  167;  Northampton  v. 
467  and  note,  and  overruling  Harms  Elwell,  4  Gray  (Mass.),  81;  Flynn 
V.  McCormick,  132  111.  104,  22  N.  E.  v.  Ins.  Co.,  115  Mass.  449;  Flynn 
511.  In  Illinois,  under  the  statute,  v.  Benefit  Asso.,  152  Mass.  288,  25 
"a  third  party,  for  whose  benefit  a  N.  E.  716. 

contract    is   made,    may    bring   as-  5.  Saunders     v.     Saunders,     154 

421 


§§    364,  365  OPERATION    OF    CONTRACTS.  Ch.    14r 

§  364.  Who  may  bring  suit  on  simple  contracts. — Where  a 
promise,  is  made  to  one  person  for  the  benefit  of  another  it  is 
generally  held  that  the  suit  may  be  brought  either  by  the  third 
party  or  by  the  promisee.^  And  the  promisee  may  maintain 
an  action  against  the  promisor  without  first  paying  the  debt  him- 
self. The  measure  of  damages  in  such  case  is  the  amount  of  the 
debt  agreed  to  be  paid.^ 

In  trust,  the  suit  at  law  is  in  the  name  of  the  trustee;^  in 
equity,  oftener  in  the  name  of  the  cestui  que  trust,  sometimes 
the  trustee  joining.* 

Closely  allied  to  this  rule  where  a  beneficiary  may  sue,  is  the 
right  of  a  real  estate  broker  to  sue  a  purchaser  for  his  commis- 
sion, when  the  latter  has  refused  to  complete  the  deal.  Thus, 
when  the  sale  has  been  made  and  the  purchaser  refuses  to  take 
the  property,  the  purchaser  is  liable  to  the  broker  for  the  dam- 
ages thereby  suffered  by  the  broker,  though  he  had  agreed  to 
look  to  the  seller  for  his  commission.^  And  so  one  who,  by  mis- 
take, sells  to  a  person  a  poisonous  drug  for  a  harmless  medicine 
is  liable  to  a  third  person,  who  without  negligence  takes  the  drug 
for  medicine,  for  damages  resulting  to  him.® 

§  365.  Description  of  the  debts. — It  is  not  necessary  to 
specify  the  debts  which  the  promisor  assumes  and  agrees  to  pay. 
It  is  enough  to  speak  of  them  as  a  class,  and  the  particular  debt 
in  question  may  be  shown  to  be  one  which  falls  within  that 
class.''    So  if  a  person  makes  an  agreement  with  a  party  by  which 

Mass.  337,  28  N.  E.  270 .  As  to  the  3.  Treat    v.    Stanton,    14    Conn. 

Code  States,  see  Bliss  on  Code  PI.  445. 

241.  4.  Dunn    v.    Seymour,    3    Stockt. 

1.  Steene  V.  Aylesworth,  18  Conn.  (N.  J.)   220. 

244;    Bell  v.  Chaplain,  Hard.   321;  5.  Livermore  v.  Crane,  26  Wash. 

Button  V.  Poole,  1  Vent.  318,  2  Lev.  529,  67  P.  221,  57  L.  R.  A.  401. 

210;    Garnett  v.   Handley,   4  Barn.  6.  Peters  v.  Johnson,  50  W.  Va. 

&  Cr.  664.  644,  41  S.  E.  190,  57  L.  R.  A.  428, 

2.  Merriam    v.    Lumber    Co.,    23  88  Am.  St.  Rep.  909  and  note. 
Minn.   314;    In  re  Negus,  7   Wend.  7.  Schmidt  v.  Glade,  126  111.  485, 
(N.  Y.)  499;  Wicker  v.  Hoppock,  6  18  N.  E.  762;  Schuster  v.  Railroad 
Wall.    (U.  S.  94;   Seigman  v.  Hof-  Co.,  60  Mo.  290;  State  v.  Railroad 
facker,  57  Md.  321.  Co.,   125  Mo.  596,  28  S.  W.  1074; 

422 


Ch.    14  CONTRACTUAL    KELATIONS.  §§    805-367 

he  buys  of  tho  other  party  credits  and  assumes  to  pay  all  his 
debts,  a  creditor  of  tho  second,  part}'  may  recover  his  debt  of 
such  first  party.* 

§  366.  Agreement  to  save  harmless. — If  the  agreement  or 
covenant  is  simply  one  to  indemnify  and  save  harmless  one  of 
the  parties  to  the  contract  against  the  claims  of  a  third  person, 
then  such  third  person  cannot  sue  upon  the  agreement  or  cove- 
nant. Such  a  contract  under  seal  or  not  is  not  a  contract  for  the 
benefit  of  the  third  person  within  the  meaning  of  the  rule.^  Thus 
where  two  railroad  companies  enter  into  an  agreement  whereby 
one  agrees  to  save  harmless  the  other  from  all  its  obligations, 
and  to  pay  and  surrender  them  paid  as  fast  as  they  were  ob- 
tained, it  does  not  give  a  creditor  a  right  to  sue  the  first  for  the 
debts  of  the  second.^" 

§  367.  Many  promisors  —  Suit  against. — When  the  prom- 
isors are  very  numerous  it  is  often  impracticable  to  bring  them 
before  the  court.  In  chancery,  under  such  circumstances,  as 
there  is  privity  of  interest,  the  court  will  allow  a  bill  to  be 
brought  by  some  of  the  parties  in  behalf  of  themselves  and  all 
the  others,  taking  care  that  there  shall  hv  a  due  representation  of 
all  substantial  interests  before  the  court.  ^ 

But  at  law  this  rule  has  not  been  adopted.     Thus  where  an 

Dean   v.   Walker,    107    111.   540,  47  304,  24  S.  W.  784,  23  L.  R.  A.  146 

Am.    Rep.    467    and    note;    Redels-  and   note,    41    Am.    St.    Rep.    654; 

heimer  v.  Miller,  107  Ind.  486,  8  N.  State  v.  Railroad  Co.,  125  Mo.  596, 

E.  447;   Cross  v.  Trusdale,  28  Ind.  28  S.  W.  1074. 

44;    Kingsbury  v.   Earle,   27  Kans.  10.  State  v.  Railroad  Co.,  12.5  Mo. 

141;    Deianey  v.  Anderson,   54   Ga.  596,  28  S.  W.  1074. 

586;    Railroad   Co.   v.   Hopkins,    18  1.  Story  on   Eq.   PI.   07:    Taylor 

Kans.  494;  Raum  v.  Kaltwasser,  4  v.  Salmon,  4  Mylne  &  Cr.  134;  Wal- 

Mo.  App.  573 ;  AntBony  v.  Heman,  worth  v.  Holt,  4  Mylne  &  Cr.  619 

14  Kans.  494.  Small  v.  Atwood,   1  Younge,  407 

8.  Snell  V.  Ives,  85  111.  279.  Chancey  v.  May,  Prec.  in  Ch.  592 

9.  Kansas  City  v.  O'Connell,  99  Lilly  v.  Tobbein.  103  Mo.  477,  15 
Mo.  357,  12  S.  W.  791;  Waller  v.  S.  W.  618,  23  Am.  St.  Rep.  887; 
Goble,  66  Iowa,  113,  23  X.  W.  290;  Piatt  v.  Colvin,  50  Ohio  St.  703, 
Houseman   v.    Water   Co..    119   Mo.  36  N.  E.  735. 

423 


§367  OPERATION    OF    CONTEAOTS.  Oil.    14: 

■unincorporated  society  has  made  a  contract,  and  stipulated  that 
the  right  of  action  should  be  vested  in  a  manager  or  agent,  the 
courts  will  not  sustain  such  agreement.^ 

Many  of  the  States  have  enacted  that  when  the  parties  are 
very  numerous  and  it  is  impracticable  to  bring  them  all  before 
the  court,  one  or  more  may  sue  for  the  benefit  of  all ;  and  this 
applies  to  legal  as  well  as  to  equitable  actions.^ 


AETICLE  III. 

Joint  and  Several  Contracts. 

Section  368.  Joint  Contracts. 

369.  Disability  of  One  Joint  Promisor. 

370.  Judgment  Against  Joint  Debtors. 

371.  Survivorship  of  Joint  Liability. 

372.  In  Equity — Survivorship  of  Joint  Liability. 

373.  Under  the  Codes. 

374.  Surety. 

375.  Release  by  Act  of  Creditor. 

376.  Covenant  Not  to  Sue. 

377.  Joint  Creditors  or  Obligees. 

378.  Release  with  Provision. 

379.  Release  Should  be  Under  Seal. 

380.  Survivorship  of  Joint  Creditors. 

381.  Release  by  Creditor. 

382.  Several  Interests. 

383.  Subscriptions  to  Establish  Business  Enterprise. 

384.  Revocation. 

385.  Validity  of  Subscription  Contracts. 

386.  Joint  and  Several  Contracts. 

387.  Release  of  Joint  and  Several  Promisors  by  Law. 

388.  Contribution. 

389.  In  What  Property  Payment  May  Be  Made. 

390.  Right  to  Receive  Contribution. 

391.  Insolvency  of  Co-sureties. 

2.  Gray  v.  Pearson,  L.  R.  5  C.  P.  Jones,  97  N.  Car.  121,  1  S.  E.  692; 
568.  Gieske  v.  Anderson,  77  Cal.  247,  19 

3.  Piatt  V.  Colvin,  50  Ohio  St.  P.  421;  Alexander  v.  Gish,  88  Ky. 
703,  36  N.  E.  735;  Bronson  v.  Ins.  13,  9  S.  W.  801;  Gibson  v.  Trust 
Co.,    85    N.    Car.    414;    Thames   v.  Co.,  58  Hun,  443,  12  N.  Y.  S.  444. 

424 


Ch.  14  CONTRACTUAL  RET.ATIONS.  §  368 

Section  392.  Must  the  Principal  Debtor  Be  Insolvent. 

393.  Sureties  Discharged  by  Act  of  rromisce. 

394.  In  Case  of  Tort. 

§  3^8.  Joint  contracts.  —  A  joint  contract  is  one  in  which 
the  contractors  are  jointly  bound  to  perform  the  promise  or  ob- 
ligation therein  contained,  or  entitled  to  receive  the  benefit  of 
such  promise  or  obligation.  Thev  must  contract  jointly  as  one 
party.  Then  they  are  jointly  and  not  severally  liable,  and 
should  all  be  sued  if  within  the  jurisdiction  of  the  court.^ 

It  is  a  general  rule  in  ex  contractu  that  obligations  to  the  non- 
joinder of  a  defendant  can  be  taken  only  by  plea  in  abatement, 
thereby  giving  the  plaintiff  a  better  writ,  by  therein  disclosing 
the  names  of  those  who  ought  to  be  joined.^ 

But  to  this  rule  there  is  an  exception,  that  if  it  appears  from 
the  face  of  the  declaration  or  other  pleading  on  the  part  of  the 
plaintiff,  that  a  person  not  made  a  defendant  was  a  joint  con- 
tractor with  those  who  are  defendants  in  the  suit,  there  being 
no  averment  of  the  death  of  such  person,  then  such  non-joinder 
is  good  ground  for  demurrer,  as  well  as  abatement.^  And  if  one 
of  the  joint  promisors  agrees  with  the  other  promisor  that  he 
will  pay  the  debt  himself,  it  does  not  give  the  promisee  the  right 
to  sue  such  promisor  alone.^  And  at  common  law,  in  suing  a 
partnership,  all  the  partners  must  be  made  parties,  as  they  were 
considered  joint  promisors ;  but  statutes  may  change  this  rule.^ 

If  a  joint  promisor,  who  is  sued  alone,  pleads  to  the  merits, 
then  he  has  lost  his  right  to  object  and  show  that  he  is  only  one 

1.  Meyers  v.  Estes,  164  Mass.  Dee.  338;  Smith  v.  Miller,  40  N.  J. 
457,  41  N.  E.  683,  32  L.  R.  A.  283;  L.  521,  13  A.  39;  Henderson  v. 
Forst  V.  Leonard,  112  Ala.  296.  20  Hammond.  19  Ala.  340;  Bledsoe  v. 
So.  587 ;  Field  v.  Runk,  22  N.  J.  L.  Irvin,  35  Ind.  293. 

525;    Eller  v.   Lacy,    137   Ind.   436,  3.  Harwood    v.    Roberta.    5    Me. 

36  N.  E.  1088;  Murphy  v.  Weil,  92  442;    Richmond    v.    Toothaker,    69 

Wis.  467,  66  N.  W.  532.  Me.  455;  McGregor  v.  Baleh.  17  Vt 

2.  Harwood    v.    Roberts,    5    Me.  567. 


442;  Reid  v.  Wilson.  39  Me.  586 
Richmond  v.  Toothaker,  69  ^le.  455 
Potter  V.  McCay,  5B  Pa.  St.  458 


4.  Lodge  V.  Dicas,  3  Barn.  &  Aid. 
Gil. 

5.  Wibaux  v.  Live  Stock  Co.,  9 


Nash  V.  Skinner,  12  Vt.  219,  36  Am.       INIont.  154. 

425 


§§    368-370  OPERATION    OF    CONTRACTS.  Cll.    14 

of  joint  contractors,^  and  will  therefore  become  liable  for  the 
whole  debt;^  in  this  way  he  becomes  severally  liable.^  But 
parties  to  a  contract  may  not,  without  statutory  authority,  des- 
ignate a  person  to  be  sued  for  its  breach,  who  is  nowise  liable 
upon  its  breach.^ 

§  369.  Disability  of  one  joint  promisor. — When  joint  debt- 
ors execute  a  joint  note  and  one  is  not  bound  by  reason  of  some 
disability,  the  other  remains  bound  especially  when  the  facts 
which  constitute  the  disability  are  known  to  the  other.^° 

Thus,  in  those  States  where  a  married  woman  is  not  liable 
upon  a  promissory  note  made  by  her  and  her  husband,  payable 
to  the  latter's  order  and  indorsed  by  him,  the  husband  is  liable 
as  maker,  though  his  wife  will  be  discharged. "^^ 

§  370-  Judgment  against  joint  debtors. — A  plaintiff  when  he 
has  received  a  judgment  against  joint  promisors,  may  take  out 
an  execution  against  one  of  them  only  and  have  only  one  satis- 
faction, thus  making  any  one  of  them  responsible  for  the  whole 
debt.^  The  entire  cause  of  action  is  merged  in  such  judgment, 
and  any  action  is  barred  against  any  other  joint  debtor.^ 

The  common  law  rule  in  England  and  in  the  United  States  is 
that  a  judgment  against  one  upon  a  joint  contract  of  several 

6.  Whelpale's    Case,    5    Co.    119:  9.  Knorr  v.  Bates,  35   N.  Y.   S. 
Eice  V.  Shute,  5  Burr.  2613.                     1060,    14  Misc.   501,   70   N.   Y.   St. 

7.  Nash  V.   Skinner,   12  Vt.  219,        686. 

36  Am.  Dee.  338;  Hieks  v.  Cram,  17  10.  Woodward  v.  Newhall,  1  Pirk. 

Vt.449;Ricev.  Shute,  5  Burr.  2611;  (Mass.)    500;   Tuttle  v.  Cooper,   10 

Richards  v.  Heather,  I  Barn.  &  Aid.  Pick.    (Mass.)    281;   Yale  v.  Whee- 

29;  Abbot  v.  Smith,  2  W.  Bl.  947;  lock,  109  Mass.  502. 

King  V.  Hoar,  13  Mees.  &  Wei.  494.  11.  Browning  v.  Carson,  163  Mass. 

8.  Beeler  v.  Bank,   34  Neb.   348,  255,  39  N.  E.  1037. 

51  N.  W.  857;   Maurer  v.  Midway,  1.  Bird  v.  Randall,  1  W.  Bl.  387, 

25  Neb.  575,  41  N.  W.  395;  Davis  388. 

V.   Chouteau,   32   Minn.   548,   21   N.  2.  Mason  v.  Eldred,  6  Wall.   (U. 

748;   Sandwich  Manuf.  Co.  v.  Her-  S.)231,  overruling,  in  effect,  Sheehy 

riott,  37  Minn.  214.  33  N.  W.  782;  v.   Mandeville,    6    Cranch    (U.    S.), 

Willson  v.  McCormick,  86  Va.  995,  254,  and  explaining  Rice  v.  Shute, 

11   S.  E.   976;   Elder  v.  Tliompson,  5  Burr.  2511. 
13  Gray   (Mass.),  91. 

426 


Ch.    14  CONTRACTUAX,    RELATIONS.  §§    370,  371 

persons,  bars  an  action  against  the  others,  though  the  latter  were 
dormant  partners  of  the  defendant  in  the  original  action,  and 
this  fact  was  unknown  to  the  plaintiff  when  the  action  was  com- 
menced, when  the  contract  is  joint,  and  not  joint  and  several, 
the  entire  cause  of  action  is  merged  in  the  judgment.  The  joint 
liability  of  the  parties  not  sued  with  those  against  whom  the 
judgment  is  recovered,  being  extinguished,  their  entire  liability 
is  gone.  They  cannot  be  sued  separately  for  they  have  incurred 
no  several  obligation ;  they  cannot  be  sued  jointly  with  the 
others,  because  judgment  has  been  already  recovered  against 
the  latter,  who  would  otherwise  be  subjected  to  two  suits  for  the 
same  cause.^ 

If  a  judgment  is  against  one  of  several  joint  promisors,  the 
claim  against  the  others  is  extinguished,  at  common  law.*  On 
the  same  principle,  if  one  of  the  partnership  gives  his  individual 
bond  for  a  simple  contract  debt  of  the  firm,  the  claim  against 
the  other  partners  is  discharged.^  And  so  where  an  oral  contract 
has  been  merged  in  a  specialty,  the  former  is  merged  and  dis- 
charged.® 

§  371.  Survivorship  of  joint  liability. — The  general  rule  is 
that  when  one  of  joint  promisors  dies,  a  joint  suit  may  be  prose- 
cuted against  all  of  the  surviving  obligors  or  promisors,  and 

3.  Mason  v.  Eldred,  6  Wall.  (U.  379,  80  Am.  Dec.  90,  for  applica- 
S.)  231;  Robertson  v.  Smitli,  18  tions  of  such  statutes. 
Johns,  (^r.  Y.)  459,  9  Am.  Dec.  227:  4.  Robertson  v.  Smith.  18  Johns. 
Ward  V.  Johnson,  13  Mass.  148;  (N.  Y.)  459,  9  Am.  Dec.  227;  Mc- 
Wann  v.  McNulty,  2  Gil.  (111.)  Master  v.  Vernon,  3  Duer  (N.  Y.), 
359,  43  Am.  Dec.  58;  Smith  v.  249;  Clinton  Bank  v.  Hart,  5  Ohio 
Black,  9  Serg.  &  R.  IPa.)  142,  11  St.  33;  Ward  v.  Johnson,  13  Mass. 
Am.  Dee.  686;  King  v.  Hoar,  13  148;  Smith  v.  Black,  9  Serg.  &  R. 
Mees.  &  Wei.  493;  Trafton  v.  (Pa.)  142,  11  Am.  Dec.  686;  Can- 
United  States,  3  Story,  C.  C.  651.  dee  v.  Smith,  93  N.  Y.  349:  Ben- 
in most  of  the  States  the  riile  of  son  v.  Fame,  2  Hilton  (N".  Y.), 
the   common   law   is   changed  with  552. 

respect  to  judgments  upon  demands  5.  Banorgee  v.  Henly,  5  Mass.  11, 

of  joint  debtors,  when  some  only  of  4  Am.  Dec.  17:  Tom  v.  Goodrich,  2 

the  parties  are  served  with  process.  Johns.    (N.  Y.)   213. 

See  Oakley  v.   Aspinwall,  4  N.  Y.  6.  Curson  v.  Monteiro,  2  Johns. 

513;    Bonesteel    v.    Todd,    9    Mich.  (X.  Y.)  308. 

427 


§§    371,  372  OPEBATION    OF    CONTEACTS.  Ch.    14 

the  personal  representatives  of  the  deceased  promisor  or  obligor 
must  not  be  joined,  since  the  same  judgment  could  not  be  ren- 
dered against  the  surviving  debtors  and  the  executor  or  admin- 
istrator of  the  deceased  obligor  or  promisor.^ 

The  death  of  one  joint  party  transmits  both  his  interest  and 
his  burdens.,  not  to  his  administrator,  but  to  his  survivors.  This 
rule  extends  to  ordinary  joint  contractors  and  to  partners.^ 
But  when  there  remains  no  survivor,  then  all  goes  to  the  ad- 
ministrator of  the  one  v^ho  died  last.^  This  is  the  common 
law  rule,  which  has  been  changed  by  statute,  and  the  court  of 
equity  will  sometimes  take  jurisdiction  to  charge  the  estate  of 
the  deceased  joint  debtor. 

§  372.  In  Equity — Survivorship  of  joint  liability. — "Where 
the  obligators  are  all  principal  debtors,  or  receive  some  benefit 
from  the  joint  obligation,  courts  of  equity  have  taken  jurisdic- 
tion in  the  case  of  death  of  one  of  the  obligors,  and  enforced 
the  obligation  against  his  representatives..  This  is  done  upon 
the  ground  that  in  conscience  the  estate  of  the  deceased  obligor 
ought  to  respond  to  the  obligation ;  and  they  will  give  relief  in 
all  cases  where,  in  consequence  of  a  primary  liability  on  the 
part  of  the  deceased  obligor,  or  of  a  benefit  received  by  him 
from  the  joint  obligation,  it  is  morally  and  equitably  just  that 
his  estate  should  be  made  liable,  and  unconscionably  that  it 
should  be  discharged.*    In  cases  of  partnership,  courts  of  equity 

1.  Cummings  v.  People,  50  111.  393;  Walker  v.  Maxwell,  1  Mass. 
132;  1  Chitty  on  PI.  50;  Ballance  V.  104;  Smith  v.  Franklin,  1  MaS3. 
Samuel,  3  Scam.  (111.)  380;  Eg-  480;  Hedderly  v.  Downs,  31  Minn, 
gleston  V.  Buck,  31  111.  254;  Stevens  183,  17  N.  274;  Daley  v.  Ericsson, 
V.  Catlin,  152  111.  56,  37  N.  E.  1023;  45  N.  Y.  786;  Calder  v.  Rutherford, 
Dicey  on  Parties,  238 ;  Richards  v.  3  Brod.  &  B.  302 ;  Jell  v.  Douglass, 
Heather,  1  Barn.  &  Aid.  29 ;   Gere  4  Barn.  &  Aid.  374. 

V.  Clark,  6  Hill  (N.  Y.),  350;  Clark  3.    Raus    v.    Yates.    Yelv.    177; 

V.    Parrish,    1    BibB     (Ky.),    547;  Stowell  v.  Drake,  23  N.  J.  L.  310; 

Foster  V.  Hooper,  2  Mass.  572;  At-  G«re    v.    Clark,    6    Hill     (N.    Y.), 

well  V.  Milton,  4  Hen.  &  M.    (Va.)  350. 

253.  4.  Gere  v.  Clark,  6  Hill   (N.  Y.), 

2.  Haskinson  v.  Eliot,  62  Pa.  St.  350;    Richardson  v.  Draper,  87  N. 

Y.  337. 

428 


Ch.    14r  CONTltACTUAL    RELATIONS.  §§    372,  373 

treat  joint  contracts  as  several  and  thus  transmit  a  right  or  obli- 
gation to  the  administrator  of  the  deceased  party.^ 

If,  through  fraud,  ignorance  or  mistake,  the  joint  obligation 
does  not  express  the  meaning  of  the  parties,  it  will  be  reformed 
so  as  to  conform  to  it.  This  has  been  done  where  there  is  a 
previous  equity  which  gives  the  obligee  the  right  to  a  secured 
indemnity  from  each  of  the  obligors,  as  in  the  case  of  money 
lent  to  both  of  them.  There  a  court  of  equity  will  enforce  the 
obligation  against  the  representatives  of  the  deceased  obligor, 
although  the  bond  be  joint  and  not  several,  on  the  ground  that 
the  lending  to  both  creates  a  moral  obligation  in  both  to  pay, 
and  that  the  reasonable  presumption  is  the  parties  intended 
tlieir  contract  to  be  joint  and  several,  but  through  fraud,  ignor- 
ance, mistake,  or  want  of  skill,  failed  to  accomplish  their  ob- 
ject' 

§  373-  Under  the  codes. — The  English  courts  no  longer  fol- 
low the  old  common  law  rule,  making  the  solvent  surviving  joint 
obligor  alone  liable  to  the  obligee  in  the  joint  contract.  They 
permit  the  action  to  be  brought  at  law  against  the  administrator 
in  the  first  instance,  whether  the  survivor  be  solvent  or  not.  Sev- 
eral of  the  American  States  hold  with  the  English  courts.^ 
However,  some  of  the  code  States  deny  this  procedure,  and  the 
suit  must  be  brought  in  equity,  if  it  can  be  brought  at  all.^ 

The  judgment  against  the  administrator  should  be  that  he 
pay  in  due  course  of  administration  the  amount  due.^      If  a 

5.  Sumner  v.  Powell.  2  Meriv.  Humph.  (Tenn.)  110;  Williams  v. 
30;  Beresford  v.  Browning,  1  Cli.  Bradley,  5  Ohio  Cir.  Ct.  114.  See, 
D.  30,  Story's  Eq.  162-164.  also,  Bachelder  v.   Fiske,   17   Mass. 

6.  United  States  v.  Price,  9  How.  464. 

(U.  S.)   90.  2.  Voorhis    v.    Child,    17    N.    Y. 

1.  Pom.  Rem.   and   Kem.   Riirhti,  354;    Sherman    v.    Kreul,    42    Wis. 

302-304:    Bliss   Code   PI.    105,   106;  33. 

Braxton  v.  State,  25  Ind.  82;  Bur-  3.  Rice  v.  Inskeep,  34  Cal.  224; 

gojne  V.  Ins.  Co.,  5  Ohio  St.  586;  Seneseal  v.  Bolton.  7  N.  Mex.  351, 

Trimmer  v.   Thompson,   10   S.   Car.  34   P.    446;    Fisher   v.   Hopkins,    4 

164;  Fisher  v.  Hopkins,  4  Wyo.  379,  Wyo.  379.  34  P.  899. 
34    P.    899:    Taylor    v.    Taylor,    5 

429 


§§    373-3Y5  OPEKATION    OF    CONTRACTS.  Cll.    14 

judgment  is  entered  against  the  administrator  de  bonis  propriis 
it  is  error/  because  tlie  executor  or  administrator  will  not  be 
personally  liable;  the  judgment  should  be  de  bonis  testatoris^ 
or   in  his  representative  capacity. 

§  374.  Surety. — In  case  of  joint  obligation  of  sureties,  if  one 
of  the  sureties  dies  his  representatives  are,  at  common  law, 
discharged,  provided  he  receives  no  benefit  whatever  from  the 
joint  obligation,  and  the  survivors  alone  can  be  sued  f  and  the 
estate  of  the  deceased  is  absolutely  discharged  both  at  law  and  in 
equity.' 

The  surety's  duty  is  measured  alone  by  the  legal  force  of  the 
bond,  and  he  is  under  no  moral  obligation  whatever  to  pay  the 
obligee,  independent  of  his  covenant,  and  consequently  there  is 
nothing  on  which  to  found  an  equity  for  the  interposition  of  a 
court  of  chancery.^ 

But  the  death  of  a  surety  does  not  terminate  his  liability, 
where  his  contract  is  a  continuing  one;  a  continuing  suretyship 
is  not  terminated  by  the  death  of  the  surety,  but  his  estate  is 
liable.^ 

§  375.  Release  by  act  of  creditor. — It  is  ordinarily  true  that 
a  release  of  one  of  joint  obligees  is  a  release  of  all,^  although 

4.  Smith  V.  Chapman,  93  U.  S.  26  Am.  Rep.  528;  Waters  v.  Riley, 
41.  2    Har.   &   G.    (Md.)    305,    18   Am. 

5.  Smith  V.  Chapman,  93  U.  S.  Dee.  302;  Compare  Susong  v. 
41.  Vaiden,  10  S.  Car.  217,  30  Am.  Rep. 

6.  Richardson  v.  Draper,  87  N.  Y.  50  and  note. 

337.  8.  Pickersgill  v.  Lahens,  15  Wall. 

7.  Towers  v.  Moore,  2  Vern.  98;  (U.  S.)  140;  Sumner  v.  Powell,  2 
Simpson  v.  Vaughan,  2  Atk.  31;  Meriv.  30,  1  Tur.  &  Rus.  423; 
Bradley  v.  Burwell,  3  Denio  (N.  Weaver  v.  Shy  rock,  6  Serg.  &  R. 
Y. ),  Gl;  Richter  v.  Pappenhausen,  (Pa.)  262;  Richardson  v.  Horton,  6 
42  N.  Y.  393 ;  Pickersgill  v.  Lahens,  Beav.  185 ;  Rawstone  v.  Parr,  3 
15    Wall.    (U.    S.)     140;    Getty   v.  Russ.  539. 

Binsse,  49  N.  Y.  388,  10  Am.  Dec.  9.  Pingrey's    Surety,    and    Guar., 

379;  Risley  v.  Brown,  67  N.  Y.  160;  sees.  84,  85,  201. 
United  States  v.  Price,  9  How.   (U.  1.  Brodeck  v.  Farnum,  11  Wash. 

S.)   90;  Davis  v.  Van  Buren,  72  N.  565,  40  P.  189;  Maslin  v.  Hiett,  37 

Y.  587;  Wood  v.  Fisk,  63  N.  Y.  245,  W.  Va.   15,  16  S.  E.  437;   Tucker- 

430' 


Ch.   14 


CONTRACTUAL    RELATIONS. 


§§  375,376 


he  may  not,  in  fact,  be  liable  for  any  of  the  obligation."  And 
a  payment  made  by  one  of  several  joint  debtors  inures  to  the 
benefit  of  all  the  debtors,  as  a  credit  upon  the  debt.^ 

But  where  a  release  is  given  on  a  general  settlement  with  a 
joint  debtor  without  any  reference  to  the  joint  debt,  it  is  no 
bar  to  the  plaintiff  to  recover  the  share  due  from  the  other 
debtor,  notwithstanding  such  settlement.* 

The  plaintiff  must  sue  all  the  joint  debtors,  if  of  full  age  ^  and 
alive,^  And  if  the  plaintiff  does  not  sue  all,  his  suit,  if  properly 
defended,  will  not  prevail.' 

In  many  States  this  matter  has  been  regulated  by  statute, 
which  must  be  consulted  to  know  the  law  in  this  respect. 


§  376.  Covenant  not  to  sue. — If  a  promise  is  made  not  to 
6ue  a  debtor,  if  he  be  a  sole  debtor,  it  will  release  the  debt; 
that  is,  if  the  covenant  is  perpetual,  it  will  bar  the  covenantor's 
suit  where  there  are  no  joint  debtors  f  but,  if  he  be  one  of  two 
or  more  joint  debtors,  such  covenant  cannot  be  set  up  in  bar  of 
a  suit.^  Such  a  covenant  is  not  properly  a  release,  and  cannot 
be  pleaded  in  bar  to  an  action.^" 


mail  V.  Newhall,  17  Mass.  581; 
Halo  V.  Spaiilding,  145  Mass.  482, 
14  N.  E.  534,  1  Am.  St.  Rep.  475; 
Houston  V.  Darling,  16  Me.  413; 
Hall  V.  Gray,  54  Me.  230;  AUin  v. 
Shadburne,  1  Dana  (Ky.),  68,  25 
Am.  Dec.  127  and  note;  Newcomb  v. 
Raynor,  21  Wend.  (N.  Y.)  108,  34 
Am.  Dec.  210;  Stone  v.  Dickinson, 
5  Allen  (Mass.),  29,  81  Am.  Dec. 
727;  Compare  State  v.  Watson,  44 
Mo.  305. 

2.  Leddy  v.  Barney,  139  Mass. 
394,  2  N.  E.  107. 

3.  Crafts  v.  Sweeney,  18  R.  I. 
730,  30  A.  658.  See,  also.  Hale  v. 
Spaulding,  145  Mass.  482,  14  N.  E. 
534,  1  Am.  St.  Rep.  475;  Clapp  v. 
Pawtucket  Inst.,  15  R.  I.  489,  8  A. 
697,  2  Am.  St.  Rep.  915. 


4.  Cutts  V.  Gordon,  13  Me.  474, 
29  Am.  Dec.  520. 

5.  Livingston  v.  Tremper,  11 
Johns.    (N.  Y.)    101. 

6.  Douglass  V.  Chapin,  26  Conn. 
76;     Bragg    v.    Wetzel,    5    Blackf. 

(Ind.)   95. 

7.  Livingston  v.  Tremper,  11 
Johns.  (N.  Y.)  101;  Tuttle  v. 
Cooper,  10  Pick.  (Mass.)  281; 
Compare  Bergman  v.  McGuire,  32 
Ark.  733.  See  Pingrey's  Surety, 
and  Guart.  sec.  91. 

8.  Ford  V.  Beech.  11  Q.  B.  852; 
Cuyler  v.  Cuyler,  2  Johns.  (N.  Y.) 
186. 

9.  Shed  V.  Pierce,   17  Mass.  623. 

10.  Winston  v.  Dalby,  64  N.  Car. 
299;  Dean  v.  Newhall,  8  Term  R. 
168.  ' 


431 


§§    376,  377  OPERATION    OF    CONTRACTS.  Cll.    14: 

A  covenant  not  to  sue  one  of  several  obligors  is  not  pleadable 
in  bar  to  an  action  on  the  bond ;  it  does  not  amount  to  a  release, 
but  is  a  covenant  only,  and  the  covenantee  is  put  to  his  crossr 
action  to  recover  the  damages  which  a  breach  may  occasion  him. 

As  an  exception  to  this  rule,  a  sole  obligor  may  plead  such 
covenant  in  bar,  to  avoid  circuity  of  action ;  for  he  should] 
recover  for  breach  of  the  covenant  precisely  the  same  damage 
that  he  had  suffered  by  suit  on  the  bond.^^ 

§  377-  Joint  creditors  or  obligees. — Joint  contractors  must 
all  sue  upon  their  joint  contract.^  So,  if  the  promise  on  which 
a  suit  is  brought  is  made  jointly  to  two  or  more  persons,  they 
must  all,  if  living,  join  in  the  action,  or  they  will  be  non-suited 
on  the  trial  by  a  proper  defense.^  So  one  joint  obligee  in  a 
joint  contract  cannot  sue  upon  the  contract  alone.  But  payment 
in  full  by  obligor  to  one  of  the  joint  obligees  discharges  the 
obligation.^ 

And  so,  a  release  of  any  one  of  several  promisees  is  good  as 
against  all.^  Thus,  where  one  partner  signs  and  seals  a  compo- 
sition deed  it  bars  the  partnership's  claim.^  But  a  mere  coven- 
ant not  to  sue  is  without  effect  except  as  foundation  for  a  coun- 
ter action.^ 

11.  Lacy  V.  Kinoston,  1  Ld.  Ray.  McGilvery  v.  Moorhead,  3  Cal.  267. 

688;  Hosack  v.  Eogers,  8  Paige  (N.  3.  Henry    v.    Township,    70    Mo. 

Y.),    237;    Goodnow    v.    Smith,    18  500;  Gark  v.  Cable,  21  Mo.  223,  64 

Pick.     (Mass.)    414,    29    Am.    Dec.  Am.  Dec.  234  and  note ;  Slingersby's 

600;  Couch  v.  Mills,  21  Wend.   (N.  Case,  5  Coke,  19;  Morrow  v.  Starke, 

Y.)  424;  Solly  v.  Forbes,  2  Brod.  &  4  J.  J.  Marsh.   (Ky.)  367. 

B.  38.  4.  Wild  v.   Williams,   6   Mees.   & 

1.  Angus  V.  Robinson,  59  Vt.  Wei.  490;  Wilkinson  v.  Lindo,  7 
585,  8  A.  497,  59  Am.  Rep.  758.  Mees.  &  Wei.  81 ;  Myrick  v.  Dame, 

2.  Gould  V.  Gould,  6  Wend.    (N.  9  Cush.    (liass.)    248;   Eastman  v. 
Y.)    263;   Wright  v.  Post,  3  Conn.  Wright,  6  Pick.    (Mass.)    316. 
142;    Hewes    v.    Bayley,    20    Pick.  5.  Wells  v.  Evans,  20  Wend.   (N. 
(Mass.)     96;    Archer    v.    Bogue,    3  Y.)    251;    Bruen   v.   Marquand,    17 

Scam,  (ni.)  526 ;  Wilson  V.  Wallace,  Johns.    (jST.  Y.)    58;   Morse  v.   Bel- 

8   Serg.  &  R.    (Pa.)    53;    Pease  v.  lows,  7  N.  H.  549;  Smith  v.  Stone, 

Hirst,  10  Barn.  &  Cr.  122;  Hatsall  4  Gill  &  J.   (Md.)   310. 

V.    Griffith,    2    Cromp.    &    M.    679;  6.  Walmesley  v.   Cooper,   11    Ad. 

Sweigart  v.  Berk,  8  Serg,  &  R.  308;  &  El.  216;   Clayton  v.  Kynaston,  2 

432 


Cll.    14  CONTBACTUAL.    RELATIONS.  §§    377,  378 

All  must  sue.  Even  a  disclaimer  by  one  of  the  obligees,  un- 
less consented  to  by  the  obligor,  will  not  authorize  the  other 
joint  creditors  to  sue  alone.^ 

When  there  is  a  misjoinder  of  plaintiffs,  the  defendant  may 
plead  in  abatement.  If  the  defect  appears  upon  the  record,  it 
may  be  objected  to  by  demurrer,  or  by  motion  in  arrest  of  judg- 
ment, or  by  error.* 

If  the  defect  does  not  appear  of  record,  the  proof  would  not 
correspond  to  the  pleadings,  and  this  would  prove  fatal,  unless 
the  pleadings  were  amended.^ 

The  principle  that  joint  obligees  or  creditors  must  all  sue 
upon  their  joint  contract,  is  not  varied  by  the  fact  that  one  of 
them  has  been  settled  with,  unless  all  the  parties  agree  to  the 
severance  of  the  joint  interest,  and  the  obligor  promises  to  pay 
each  his  several  share,  and  the  suit  is  based  upon  the  new  prom- 
ise. Then  each  may  sue  therefor,  the  suit  being  based  upon  the 
promise  to  pay  each  severally,  and  not  on  the  original  joint 
promise.^" 

§  378.  Release  with  provision, — Where  a  release  is  given  to 
one  of  joint  obligors,  which  operates  as  an  absolute  discharge  of 
suchi  obligor,  it  w'ill  also  operate  to  release  his  co-obligors,  not- 
withstanding the  instrument  contains  an  express  provision  that 
such  co-obligors  shall  not  thereby  be  released.^  But  if  the  in- 
strument provides  that  if  suit  is  brought  against  the  obligor,  the 
instrument  shall  become  a  good  bar  thereto  and  operate  as  an 

Salk.  573;  Couch  v.  Mills,  21  Wend.  Bos.  &  Pul.  67;  Balcer  v.  Jewell,  6 

(N.  Y.)   424;  Walker  v.  McCulloch.  Mass.  460,  4  Am.  Dec.  162;   Petrie 

4  Me.  421;   McClellan  v.   Bank,  24  v.  Berry,  3  Barn.  &  C.  353;   Pugh 

Me.    566;    Rowley    v.    Stoddard,    7  v.    Stringfield,    3    C.    B.,    N.    S.    2; 

Johns.   (N.  Y.)   207.  Davis   v.   Chouteau.   32  :Minn.   548, 

7.  Angus    V.    Robinson,    59    Vt.  21  N.  748. 

585,   8   A.   497.   59  Am.   Rep.   758;  9.  Chanter   v.   Leese,   4   Jlces.   & 

Wetherell    v.     Langston,     1     Exch.  Wei.  295. 

634.  10.  Angus   v.    Robinson,    59    Vt. 

8.  Wiggin    V.    Cumings.    8    Allen  585,  8  A.  497.  59  Am.  Rep.  758. 
(Mass.),  3a3;    Beach  v.  Hotchkiss.  1.  Parnielee  v.  Lawrence,  44  111. 
2    Conn,    697;    Scott   v.    Godwin,    1  405. 

433 


§§    378,  379  OPEKATION    OF    CONTIiii.CTS.  Cll.    14 

absolute  release  and  acquittance  on  the  bond  as  to  him,  and 
which  declares  that  it  was  not  intended  thereby  to  release  or 
discharge  the  other  sureties,  it  is  a  covenant  not  to  sue,  and  not 
a  release,  and  cannot  be  set  up  by  the  defendant  ;^  but  it  gives  a 
right  of  action  for  every  violation  of  the  terms  of  the  provision. 

§  379-  Release  should  be  under  seal. — An  agreement  not  un- 
der seal  to  discharge  a  particular  party,  or  an  agreement  not  to 
sue  or  the  like,  will  not  have  that  effect  because  it  does  not  ex- 
tinguish it.^  And  so,  a  release  not  under  seal  of  one  joint 
debtor  by  a  creditor  in  consideration  of  a  payment  of  part  of 
the  debt,  is  no  discharge  of  the  residue.^  The  reason  is  because 
it  cannot  be  inferred  from  such  a  covenant  it  was  the  intention 
of  the  parties  to  discharge  the  debt. 

But  a  technical  release  to  one  of  several  joint  debtors,  being 
under  seal,  may  be  pleaded  in  bar  to  a  suit.^ 

Though  this  rule  rests  upon  reasons  technical  rather  than 
satisfactory,  it  has  been  adopted  and  is  supported  by  the  great 
weight  of  authority.^  But  it  has  been  said  that  this  rule  has  be- 
come so  overburdened  with  exceptions  and  nice  distinctions,  and 
equivocal  approbations  by  the  numerous  cases  decided,  that  it  is 
sometimes  difficult  to  ascertain  what  the  law  is  as  applicable  to  a 
particular  case,^ 

But  the  rule  is,  that  where  one  of  several  joint  debtors  had 
been  discharged  from  his  share  of  the  debt  by  an  instrument 

2.  Bowne  v.   Bank,   45   N.   J.   L.  man,  12  Gray   (Mass.),  341;  Drink- 

360;   Dean  v.  Newhall,  8  Term  R.  water     v.     Jordan,     46     Me.     432; 

168;    Thompson   v.   Lock,    3    C.    B.  Walker   v.   McCullocli,  4  Me.  421; 

540;   Crane  v.  Ailing,   15  N.  J.  L.  Catskill  v.  Messenger,  9  Cow.    (N. 

423;  Solly  v.  Forbes,  2  Brod.  &  B.  Y.)    37;    Brown   v.    Marsh,    7    Vt. 

38;   Williams  v.  Hitchings,  10  Lea  327;  Shed  v.  Prince,  17  Mass.  623. 

(Tenn.),  326;   Nortli  v.  Wakefield,  3.  Drinkwater  v.  Jordan,  46  Me. 

13  Q.  B.  536;  Price  v.  Barker,  4  El.  432;    Line  v.   Nelson,   SB   N.   J.   L. 

&  B.  760.  358. 

1.  Shaw     V.     Pratt,     22     Pick.  4.  Daniels  v.  Hafch,  21  N.  J.  L. 
(Mass.)    305;  Pond  v.  Williams,  1  393,  47  Am.  Dec.  169. 

Gray   (Mass.),  630.  5.  Morris  Canal  v.  Van  Vorst,  21 

2.  Bemis    v.    Hoseley,    16    Gray       N.  J.  L.  119. 
(Mass.),    63;    Harriman   v.    Harri- 

434 


Ch.    14  CONTRACTUAL    RELATIONS.  §§    379-381 

not  under  seal,  even  though  made  upon  adequate  consideration, 
such  discharge  constitutes  no  defense  to  any  of  them,  in  an 
action  against  them  f  and  the  remedy  of  the  discharged  debtor, 
if  he  should  be  afterwards  molested  on  account  of  the  debt,  will 
be  by  an  appropriate  action  founded  upon  a  breach  of  the  con- 
tract of  discharge.^ 

Of  course  a  release  by  deed  must  be  under  seal,  except  in  those 
States  where  the  private  seal  is  abolished,  as  a  seal  at  common 
law  imports  a  consideration.  But  there  may  be  equally  valid 
releases  without  any  sealed  instrument,  as  those  by  operation 
of  law,  or  releases  made  in  States  where  the  private  seal  is 
abolished,  or  releases  made  by  the  parties  upon  good  and  val- 
uable consideration,  which  are  effectual  and  valid.* 

§  380.  Survivorship  of  joint  creditors. — When  one  of  the 
joint  creditors  dies  the  survivors  take  the  whole  interest,  and 
they  alone  can  sue.  Thus,  upon  the  death  of  one  of  the  partners 
of  a  firm,  the  firm  is  dissolved,  and  the  rights  to  recover  all 
debts  and  choses  in  action,  in  his  own  name,  survives  to  the  sur- 
viving partner,  to  enable  him  to  collect  all  dues,  but  no  general 
and  ultimate  right  of  property  by  survivorship  arises,  as  in  cases 
of  joint  tenancy,  at  common  law\^  The  representatives  of  the 
deceased  creditor  cannot  sue  for  the  debts,  as  this  right  belongs 
to  the  survivors.^ 

§  381.  Release  by  creditor. — One  of  the  several  creditors 
may  release  the  debt  and  give  acquittance  to  all  the  debtors.^ 

6.  Harrison  v.  Close,  2  Johns.  3  Allen  (Mass.),  47i;  Goss  v.  EUi- 
(N.  Y.)    447;   Rowley  v.  Stoddard,        son,  136  Mass.  503. 

7    Johns.     (K    Y.)    207;    Frink   v.  1.  Burnside   v.    INIerrick,    4    Met. 

Green,  5  Barb.   (N.  Y.)   455;  Shaw  (Mass.)    537;    Murphy  v.   Bank,   5 

V.    Pratt,    22    Pick.     (Mass.)     305;  Ala.  421. 

Crane  v.  Ailing,  15  N.  J.  L.  423.  2.  Peters  v.  Davis,  7  Mass.  257 ; 

7.  JfcAllister  v.  Sprague,  34  Me.  Anderson  v.  Martindale,  1  East, 
296 ;  Drinkwater  v.  Jordan,  46  Me.  497 ;  Richards  v.  Heather,  1  Barn.  & 
432.  Aid.  29;   Daley  v.  Ericsson,  45  N. 

8.  Dunham    v.    Branch,    5    Cush.        Y.    786;    Calder    v.    Rutherford.    3 
(Mass.)   558;  Brown  v.  Cambridge,       Brod.  &  B.   302;    Walker  v.  Max- 
well. 1  Mass.   104,   113. 

435 


§§    381,  382  OPERATION"    OF    CONTRACTS.  Ch.     14r 

So,  a  release  by  two  of  three  joint  creditors  is  a  bar  to  a  suit  by 
the  third  for  one-third  of  the  benefits.^  A  release  by  one  of  joint 
creditors  or  promisees  will  not  be  set  aside  unless  it  is  shown 
to  have  been  made  in  fraud  to  the  other  promisees,  or  unless 
the  promisor  be  a  mere  nominal  party  to  the  action,  having  no 
interest  whatever  in  the  subject-matter  of  the  contract.^  If 
one  of  the  joint  creditors  has  parted  with  all  his  interest  he  can- 
not then  release.^ 

But  so  long  as  a  person  has  an  interest  in  a  joint  business,  his 
interest,  however  small  it  may  be,  is  sufficient  to  enable  him  to 
release  the  promisor.^ 

§  382.  Several  interests. — Where  the  interest  of  each  person 
to  a  contract  is  several  and  distinct,  each  may  maintain  a  sepa- 
rate action  for  a  breach  without  joining  the  others  on  the  same 
side  as  himself.  A  contract  by  and  between  several  persons 
ascertaining  a  separate  and  distinct  interest,  gives  to  each  a 
right  of  action  in  his  own  name.^  The  party  suing  may  pro- 
ceed against  one  or  each  singly,  or  jointly  against  all,  but  not 
against  more  than  one  and  less  than  all.^  If  a  joint  defendant 
pays  the  debt,  it  is  discharged,  and  no  judgment  can  be  rendered 
against  another.^ 

Where  the  contracts  are  in  every  respect  as  distinct  and  sev- 
eral as  if  contained  in  separate  instruments,  in  each  of  which 

1.  Tuckerman  v.  Newhall,  17  Martin,  56  Ala.  336;  Burton  v. 
Mass.  580;  Bruen  v.  Marquard,  17  Henry,  90  Ala.  281,  7  So.  925; 
Johns.  (N.  Y. )  58;  Wilkinson  v.  Browning  v.  Carson,  163  Mass.  255, 
Lindo,  7  Mees.  &  Wei.  81.  39  N.  E.  1037. 

2.  Myrick  v.  Dame,  9  Cush.  2.  Streatfield  v.  Halliday,  3  Term 
(Mass.)    248.  R.  779;    Cleremont  Bank  v.   Wood, 

3.  Rawstorne  v.  Gaudell,  15  12  Vt.  252;  Bangor  Bank  v.  Treat, 
Mees.  &  Wei.  304.  6  Me.  207,  19  Am.  Dec.  210. 

4.  Phillips  V.  Clagett,  11  Mees.  3.  Wallace  v.  Kelsall,  7  Mees.  & 
&  Wei.  84.  Wei.  264;  Husband  v.  Davis,  10  C. 

5.  Rawstorne  v.  Gaudell,  15  B.  645;  Beaumont  v.  Greathead,  2 
Mees.  &  Wei.  304.  C.   B.    494;    Griffin  v.   Thomas,   21 

1.  Chitty   on   PI.    9-13;    Boyd   v.        Ga.  198. 


436 


Ch.    14  CONTRACTUAL    RELATIONS.  §§    382,  383 

the  promisee  has  been  named,  it  is  a  several  contract  though 
contained  in  one  instrument* 

Debtors  bj  mere  account  are  not  joint  makers  or  promisors 
with  one  who  has  by  a  separate  contract  guaranteed  payment 
of  the  account.  The  two  contracts  are  several,  not  joint.  The 
liability  of  each  is  several.  Those  who  contracted  the  account 
are  not  liable  at  all  on  the  guarantee,  and  he  who  made  the 
guaranty  is  not  liable  at  all  on  the  account.^ 

And  where  the  contract  is  several  as  to  the  promisees,  they 
must  sue  separately,®  except  where  the  statute  has  changed  this 
rule.^  The  statute  must  be  consulted  in  respect  to  joint  and  sev- 
eral contracts. 

Of  course,  the  doctrine  of  survivorship  cannot  apply  to  sev- 
eral contracts.^ 

§   383.   Subscriptions  to   establish   business   enterprises. — 

Where  subscribers  to  a  contract  for  the  establishment  of  a  busi- 
ness or  location  of  a  corporate  plant,  agree  to  pay  the  amount 
opposite  their  names,  it  is  a  several  contract,  unless  other  pro- 
visions control,  and  each  subscriber  is  liable  to  pay  the  amount 
of  his  individual  subscription  only.-^  The  amount  which  each 
subscriber   agrees   to   pay  is  limited  to  the  amount  he  has  sub- 

4.  Barabacher  v.  Lee,  16  Mich.  N.  W.  302;  Wallis  v.  Carpenter,  13 
1G9;  Yates  v.  Foot,  12  Johns.  (N.  Allen  (Mass.),  19;  Costigan  v. 
Y.)    1;   Geer  v.  School  Dist.,  6  Vt.        Lunt,  104  Mass.  217. 

76;    Hall   v.   Leigh,   8   Cranch    (U.  8.  Carthrae   v.    Brown.    3    Leigh 

S.),    50;    Catawissa    R.    R.    Co.    v.  (Va.),  98,  23  Am.  Dec.  2.15. 

Titus,  49   Pa.   St.   277;    Chanter  v.  1.  Davis  v.  Belford,  70  :\Iich.  120, 

Leese,  4  Mees.  &  Wei.  295.  37   N.  W.   919;   Manufacturing  Co. 

5.  Sims  V.  Clark,  91  Ga.  302,  18  v.  Barber,  51  Fed.  Rep.  148;  Gibbons 
S.  E.  158.  V.  Grinell,   79  Wis.   370,  48  N.   W. 

6.  Price  v.  Railroad  Co.,  18  Ind.  255;  Frost  v.  Williams,  2  S.  Dak. 
137;  Independence  v.  Qtt,  133  Mo.  457,  50  N.  W.  964;  Davis  v.  Jones, 
301,  36  S.  W.  624;  Davis  v.  Bel-  66  Fed.  Rep.  124;  Davis  v.  Murray, 
ford,  70  Mich.  120,  37  X.  W.  919.  102    Mich.    217,    60    N.    W.    437; 

7.  Wibaux  v.  Live  Stock  Co.,  9  Davis  v.  Cupp,  89  Wis.  673,  62  N". 
Mont.  154,  22  P.  492;  Brown  v.  W.  520;  Compare  Davis  v.  Shafer. 
McKee,  108  N.  Car.  387,  13  S.  E.  8;  50  Fed.  Rep.  764;  Davis  v.  Crcam- 
SteflFes  v.  Lemke,  40  Minn.  27,  41  ery  Co.,  48  Neb.  471,  67  N.  W.  436. 

43Y 


§§  383,  384  OPERATION  of  contkacts.  Ck  14 

scribed ;  otherwise,  a  few  responsible  subscribers  might  be  made 
liable  for  numerous  irresponsible  parties.^ 

But  there  may  be  provisions  in  the  contract  by  which  the  sub- 
scribers may  assume  joint  liability  or  obligations  for  the  pay- 
ment of  the  whole  money  subscribed  for  the  enterprise  or  crea- 
tion of  a  corporation,  as  by  giving  a  joint  note  for  the  debt.' 
But  all  subscription  contracts,  to  be  valid,  must  be  delivered  to 
a  person  to  perform  or  secure  the  performance  of  the  conditions 
therein  irnposed,  as  delivery  as  in  other  contracts,  is  essential.'* 

§  384.  Revocation. — ^While  a  subscription  to  an  enterprise  by 
several  subscribers  is  a  several  contract  between  the  promisors 
and  promisee,  it  is  also  in  a  sense  a  contract  among  the  sub- 
scribers themselves,  and  cannot  be  withdravsm  or  revoked  as  to 
one  without  the  consent  of  all.^  Each  of  the  subscribers  con- 
tracts with  the  others  to  accomplish  the  purpose,  and  can  compel 
the  performance  of  the  contract  to  the  extent  necessary  to  pro- 
tect himself  from  any  other  or  different  liability  than  that  which 
he  assumes.^ 

While  such  a  contract  creates  a  several  liability  on  the  part  of 
each  subscriber  to  the  amount  of  his  subscription  only,  yet  in 
other  respects  the  interests  of  the  subscribers  are  joint,  and  all 
must  unite  in  order  to  repudiate  and  renounce  an  executory  con- 
tract, subjecting  themselves  to  such  damages  as  will  compensate 
the  other  party  for  being  stopped  in  the  performance  of  the  con- 

2.  Landworlen    v.    Wheeler,    106  4.  Heller  v.   Board  of  Trade,   18 
Ind.  523,  5  N.  E.  888;  Erie,  etc.  R.        Ind.  App.  188,  47  N.  E.  649. 

R.  Co.  V.  Patrick,  2  Kejes  (N.  t^.),  1.  Cravens   v.    Cotton  Mills  Co., 

256.     See,  also,  Davis  v.  Creamery  120  Ind.  6,  ^1  N.  E.  984,  16  Am.  St. 

Co.,  10  Ind.  App.  42,  37  N.  E.  549;  Rep.    298;    Current   v.    Fulton,    10 

Price  V.  Railroad  Co.,  18  Ind.  137;  Ind.  App.  617,  38  N.  E.  419. 

Davis  V.  Booth,   10   Ind.  App.   364,  2.  Zabriskie  v.   Railroad   Co.,   18 

37  N.  E.  549;  Gibbons  v.  Bente,  51  N.  J.  Eq.   184;   Erwin  v.  Nav.  Co., 

Minn.  499,  53  N.  W.  756,  22  L.  R.  27   Fed.   Rep.  625;    Brewer  v.   Bos- 

A.  80  and  note.  ton  Theater,  104  Mass.  378;  Clear- 

3.  Davis  V.  Knoke,  55  Minn.  368,  water  v.  Meredith,  1  Wall.   (U.  S.) 
67  N.  W.  62.  25 ;   Henry  v.  Dietrich,   84  Pa.   St. 


286. 


438 


Ch.    14  CONTR^VCTUAL    RELATIONS.  §§    384-386 

tract  ;^  one  of  the  subscribers  cannot  revoke — it  will  tako  all  of 
them."*  He  can  have  no  such  authority  or  agency,  nor  can  he 
bind  the  others,  so  as  to  alter,  renew  or  extend  their  liability. 
Where  the  relation  is  merely  that  of  joint  debtor,  neither  is 
agent  of  the  other  to  make  new  contracts.^ 

§  385.  Validity  of  subscription  contracts. — It  is  well  settled 
that  any  benefit  or  advantage  to  the  party  making  the  promise, 
or  any  inconvenience  or  damage  sustained  by  the  party  to  whom 
the  promise  is  made,  is  a  sufficient  consideration  to' support  a 
promise  to  pay  by  each  subscriber.  And  many  authorities  hold 
that  where  several  persons  subscribe,  or  agree  to  contribute, 
to  a  common  object,  the  promise  of  each  is  a  good  considera- 
tion for  that  of  the  others.  But  all  the  authorities  agree  that 
where  the  persons  to  whom  the  subscription  runs  have  expended 
money  or  incurred  obligations  on  the  faith  of  such  subscriptions, 
it  is  a  sufficient  consideration  to  support  the  contract.^ 

§  386.  Joint  and  several  contracts. — It  is  a  familiar  princi- 
ple that  where  several  persons  contract,  jointly  and  severally, 

3.  Gibbons  v.  Bente,  51  Minn.  Bente,  51  Minn.  499,  53  N.  W.  756, 
499,  53  N.  W.  756,  22  L.  R.  A.  80.  22  L.  R.  A.  80. 

4.  Gibbons  v.  Bente,  51  Minn.  1.  Egeleshimer  v.  Van  Antwerp, 
499,  53  N.  W.  756,  22  L.  R.  A.  80:  13  Wis.  546;  Lathrop  v.  Knapp,  27 
Compare  Davis  v.  Bronson,  2  N.  Wis.  214;  LaFayette  «S:  ^f.  Corpo  v. 
Dak.  300.  50  ^T.  W.  826,  33  Am.  St.  Maofoon,  73  Wis.  027,  42  N".  W.  17. 
Rep.  783  and  note,  16  L.  R.  A.  655  3  L.  R.  A.  761  and  note;  Gibbons 
and  note.  v.  Grinell,  79  Wis.  365,  48  N.  W. 

5.  Willoughby  v.  Irish,  35  Minn.  255;  Troy  Conference  Academy  v. 
63,  27  N.  W.  379,  59  Am.  Rep.  297;  Nelson,  24  Vt.  189;  Barnes  v.  Per- 
Van  Kensen  v.  Parmelee,  2  X.  Y.  ine,  12  N.  Y.  18;  Pitt  v.  Gentle.  49 
523.  51  Am.  Dec.  322  and  note:  Mo.  74:  Homan  v.  St<>elp.  18  Neb. 
Bell  V.  Morrison.  T  Pel.  (U.  S.)  652.  26  N.  W.  472.  See.  also, 
351;  Thompson  v.  Bowman,  6  Wall.  Forest  M.  E.  Church  v.  Donnell.  95 
(U.  S.)  316;  Thompson  v.  Richards.  Iowa.  300.  64  N.  W.  412;  Superior 
14  Mich.  172:  Wallis  v.  Randall,  81  Con.  Land  Co.  v.  Bickford,  93  Wis. 
N.  Y.  164;  Shoemaker  v.  Benedict.  220,  67  N.  W.  45;  Davis  v.  Cream- 
11  N.  Y.  176,  62  Am.  Dec.  95  and  err  Co.,  48  Neb.  471.  67  N.  W.  436; 
note;  Current  v.  Fulton.  10  Ind.  Howell  v.  Church,  61  in.  App.  121. 
App.  617.  38  N.  E.  419:  Gibbons  v. 

439 


J§    386,  387  OPEEATION    OF    CONTKACTS, 


Ch.  14 


the  creditor  may  sue  all  in  one  action  or  may  sue  each  one  sev- 
erally, but  he  cannot  sue  two  and  omit  the  others ;  for  in  such 
case  they  are  sued  neither  jointly  or  severally  as  they  promise.^ 
If  the  plaintiff  does  not  see  fit  to  proceed  against  them  sev- 
erally, it  is  the  undoubted  right  of  the  defendants  to  have  all 
joined  with  them  in  the  suit.^  A  bond  of  an  officer  is  joint  and 
several,  and  an  action  is  properly  instituted  against  all  the 
obligors  thereto  for  a  breach  of  its  conditions.^ 


§  387.  Release  of  joint  and  several  promisors  by  law. — As 

already  stated,  if  an  obligee  releases  one  of  the  obligors  who 
are  bound  jointly  and  severally,  the  others  are  thereby  dis- 
charged.^ But  at  common  law,  a  release  of  one  joint  debtor  by 
operation  of  law,  as  by  a  discharge  in  bankruptcy^  or  insol- 
vency, or  a  discharge  by  the  exercise  of  a  right  as  for  infancy,' 
or  a  discharge  by  operation  of  the  statute  of  limitations,*  does 
not  release  the  co-promisors,  whose  liability  still  remains.  In 
such  case  the  other  debtors  may  be  joined  without  including  the 
one  discharged  by  law. 


1.  Howard  v.  Roberts,  5  Me.  441; 
Bangor  Bank  v.  Treat,  6  Me.  207, 
19  Am.  Dec.  210;  State  v.  Chandler, 
79  Me.  172,  8  A.  553;  Streatfield 
V.  Halliday,  3  Term  R.  779;  Clare- 
mont  Bank  v.  Wood,  12  Vt.  252; 
Schilling  v.  Black,  49  Kans.  552, 
31  P.  143;  Carter  v.  Carter,  2  Day 
(Conn.),  442,  2  Am.  Dec.  113. 

2.  State  V.  Chandler,  79  Me.  172, 
8  A.  553. 

3.  Jenks  v.  School  Dist.,  18 
Kans.  356;  Saurdsfeger  v.  State,  21 
Kans.  475;  Schilling  v.  Black,  49 
Kans.  552,  31  P.  143;  Klapp  v. 
Kleckner,  3  Watts  &  S.  (Pa.)  519; 
Besore  v.  Potter,  2  Serg.  &  R.  (Pa.) 
154;  Wampler  v.  Shissler,  1  Watts 
&  S.  (Pa.)  365;  Bradburne  v.  Bot- 
field,  14  Mees.  &  Wei.  559. 


1.  Co.  Litt.  232a;  Brooks  v. 
Stuart,  9  Adol.  &  E.  854;  Maslin 
V.  Hiett,  37  W.  Va.  15,  16  S.  E. 
437. 

2.  Coburn  v.  Ware,  25  Me.  330; 
Turner  v.  Esselman,  15  Ala.  690; 
Garnett  v.  Roper,  10  Ala.  842. 

3.  Hartness  v.  Thompson,  5 
Johns.  (N.  Y.)  160;  Tuttle  v. 
Cooper,  10  Pick.  (Mass.)  281; 
Robertson  v.  Smith,  18  Johns.  (N. 
Y.)  459,  9  Am.  Dee.  227. 

4.  Spaulding  v.  Ludlow,  36  Vt. 
150;  Denny  v.  Smith,  18  N.  Y.  567; 
Cutler  V.  Wright,  22  N.  Y.  472; 
Bruce  v.  Flagg,  1  Dutch  (N.  J.), 
219;  Fannin  v.  Anderson,  7  Q.  B. 
811. 


440 


Ch.    14  CONTRACTUAL    RELATIONS.  §    388 

§  388.  Contribution. — At  one  time  it  was  a  question  whether 
parties  jointly  liable  conld  enforce  contribution  unless  founded 
upon  some  positive  contract  between  tliem  incurring  the  lia- 
bility. But  now  it  may  be  enforced  at  law,  in  most  States,  as 
well  as  in  equity,  although  no  express  contract  exists.  And  it 
matters  not,  in  case  of  a  debt,  whether  the  sureties  are  jointly 
and  severally  bound,  or  only  severally ;  whether  their  obligation 
arises  under  the  same  instrument,  or  under  divers  obligations 
or  instruments,  if  all  the  instruments  are  for  the  same  identi- 
cal debt.^  The  action  for  contribution  arises  upon  a  principle 
of  equity,  though  it  is  now  established  to  be  the  foundation  of 
an  action  at  law.^ 

This  rule  of  equity  applies  between  sureties^  and  other  joint 
promisors.'*  The  ground  upon  which  a  surety  is  entitled  to 
contribution  is  that  he  has  paid  the  debt  for  which  he  and  his 
co-sureties  are  bound.  He  cannot  maintain  a  suit  on  the  origi- 
nal contract  f  he  need  not  wait  until  he  is  compelled  to  pay  it.' 

The  doctrine  of  contribution  is  not  founded  on  contract,  but 
is  the  result  of  general  equity,  on  the  ground  of  equality  of  bur- 
den and  benefit,  and  is  equally  so  among  principals  as  among 
sureties.'  An  express  agreement  will  control  though  in  parol,' 
and  sometimes  other  equities  may  change  the  rule.' 

In  case  of  an  assignment  of  property  from  the  principal  to  a 

1.  Story  Eq.  Jur.  495.  6.  Glasscock     v.     Hamilton,     62 

2.  Davies  V.    Humphreys,  6  Mees.        Tex.    143;    Jackson   v.   Murray.    77 

6  Wei.  153;  Bushnell  v.  Bushnell,  Tex.  644,  14  S.  W.  235;  Kemp  v. 
77  Wis.  435,  46  N.  W.  442,  9  L.  Fender,  12  Mees.  &  W.  421 ;  Chaffee 
R.  A.  411  and  note;  Fowler  V.  Don-  v.  Jones.  19  Pick.  (Mass.)  260; 
ovan,79  HI.  310;  Kincaid  v.  Hoeker.  Taylor  v.  Savage,  12  Mass.  98. 

7  J.  J.  Mar.   (Ky.)   333.  7.  Fletcher  v.  Grower,   11   N.  H. 

3.  Wells  V.  Miller,  66  N.  Y.  255;        3G9,  35  Am.  Dec.  497. 

Bushnell  v.  Bushnell,  77  Wis.  435,  8.  Robertson    v.    Deatherage,    82 

46  X.  W.  442,  9  L.  R.  A.  411   and  111.  511. 

note :    Robertson  v.  Deatherage,  82  9.  Wells  v.  ]\riller,  66  N.  Y.  255 ; 

111.  511.  Scofield    V.    Gaskill,    60    Ga.    277; 

4.  Chipnian  v.  Morrill,  20  Cal.  Healoy  v.  Scofield,  60  Ga.  450; 
130;  Snyder  v.  Kirtley,  35  Mo.  Craven  v.  Freeman,  82  X.  Car. 
423.  361. 

5.  Halliman  v.  Rocrers.  6  Tex.  91. 

441 


§§    388-390  OPEEATION    OF    CONTKACTS.  CL    14 

surety,  for  the  purpose  of  indemnifying  him  in  part,  such  as- 
signment will  inure  to  the  benefit  of  all  the  sureties,  and  a 
surety  who  has  received  money  from  such  a  fund  can  only  re- 
cover from  his  co-sureties  their  just  proportions,  or  aliquot 
parts,  of  the  sum&  he  may  have  paid  beyond  the  sum  so  re- 
ceived from  the  property  assigned.^" 

A  surety  who  has  paid  a  judgment  against  himself  and  co- 
surety cannot,  by  taking  an  assignment  thereof,  enforce  the 
full  amount  of  the  judgment  against  his  co-surety. ^^  And  a 
surety  who  voluntarily  and  unconditionally  pays  a  judgment 
against  himself  and  co-surety  without  taking  an  assignment 
thereof,  cannot  compel  contribution  from  his  co-surety  on  the 
original  contract  ;^^  to  protect  himself  he  must  take  an  assign- 
ment of  the  judgment." 

§  389.  In  what  property  payment  may  be  made. — When 

one  co-surety  pays  the  debt  in  any  mode,  either  in  property, 
negotiable  paper  or  securities,  if  such  payment  is  received  in 
full  satisfaction  of  the  original  debt,  it  is  equivalent  to,  and  will 
be  treated  as,  a  payment  in  cash,  and  the  payer  has  his  right 
to  contribution.^  But  the  refusal  of  a  surety  to  accept  prop- 
erty from  his  principal  as  indemnity  will  not  defeat  his  right 
to  contribution  where  he  has  pai-d  the  original  debt.^ 

§  390.  Right  to  receive  contribution. — It  is  well  settled  that 
before  a  surety  is  entitled  to  call  upon  a  co-surety  for  contribu- 

10.  Batchelder  v.  Fisk,  17  Mass.  494;  Pinkston  v.  Taliaferro,  9  Ala. 
464.  .547;   Brisendiiie  v.  Martin,   1   Ired. 

11.  MeGinnis  v.  Loring,  126  L.  (N.  Car.)  286 ;  Ralston  v.  Wood, 
Mo.  404,  28  S.  W.  750.  15  111.  159;   Witherby  v.  Mann,  11 

12.  McGinnis  v.  Loring,  126  Mo.  Johns.  (N.  Y.)  518;  Stone  v.  Por- 
404,  28  S.  W.  750.  ter,    4    Dana     (Ky.),    207;    Robin- 

13.  Farwell  v.  Becker,  129  111.  son  v.  Maxcey,  6  Dana  (Ky.),  101; 
274,  21  N.  E.  792.  See,  also,  Peebles  Cornwall  v.  Gould,  4  Pick.  (Mass.) 
V.  Gay,  115  N.  Car.  S'8,  20  S.  E.  173,  444;  Stubbins  v.  Mitchell,  82  Ky. 
44  Am.  St.  Rep.  429.  See  Pingrey  536;  Smith  v.  Mason,  44  Neb.  610, 
on  Surety,  and  Guaranty,  sees.  196-  63  N.  W.  41. 

212.  2.  Smith  v.  Mason,  4^  Neb.  610, 

1.  Keller    v.    Boatman,    49    Ind.        63  N.  W.  41. 
104;    Anthony   v.   Perciful,   8   Ark. 

442 


Ch.    14  CONTRACTUAL    RELATIONS.  §§    390,  391 

tion  he  must  have  actually  paid  the  debt'  lint  this  doc- 
trine does  not  require  that  the  indebtedness  shall  be  paid  in 
money  by  the  surety.  If  there  has  been  delivered  to  the  obligee, 
property  which  is  received  in  full  satisfaction  of  the  demand, 
it  is  equivalent  to  payment  in  cash,  and  will  authorize  the 
surety  to  call  upon  his  co-sureties  for  reimbursement  on  the 
basis  of  the  value  of  the  property  so  delivered,  not  exceeding 
the  debt  thereby  discharged,"  with  interest  only  at  the  legal 
rate  from  date  of  payment.^ 

In  some  States  contribution  between  sureties  can  be  claimed 
in  equity  only  and  not  at  law,*  except  where  changed  by  statute. 

§  391.  Insolvency  of  co-sureties. — Some  cases  hold  that  in 
an  action  for  contribution  the  question  of  solvency  or  insol- 
vency of  the  co-sureties  is  not  material,  and  the  one  paying  the 
debt  is  entitled  to  recover  contribution  without  regard  to  the 
insolvency  of  any  of  them.  But  the  equitable  rule  is  that  con- 
tribution must  be  based  upon  the  number  of  solvent  co-sureties. 
That  is,  the  insolvent  ones  are  to  be  excluded,  and  the  burden 
is  to  be  distributed  equally  among  those  who  are  solvent.^  This 
is  the  rule  in  equity  in  some  States,^  but  not  at  law,  as  at  law 
the  aliquot  portion  is  to  be  ascertained  on  the  basis  of  the  number 

1.  Bisph.  Eq.  33D.  Young  v.  Clark,  2  Ala.  264;  Young 

2.  Brandt  on  Suretyship,  285;  v.  Lyons,  8  Gill  (Md.),  162;  Gross 
Ralston  v.  Wood,  15  111.  159,  58  v.  Davis,  87  Tenn.  226,  10  Am.  St. 
Am.  Dec.  604;  Atkinson  v.  Stewart,  Rep.  635  and  note,  11  S.  W.  92; 
2  B.  Mon.  (Ky.)  348;  Stubbins  v.  Xewton  v.  Pence,  10  Ind.  App.  672, 
Mitchell,  82  Ky.  536.  38  X.  E.  484 ;  Breckinridge  v.  Tay- 

3.  Bushnell  v.  Bushnell,  77  Wis.  lor,  5  Dana  (Ky.),  110;  Boseley  v. 
435,  46  N.  W.  442,  9  L.  R.  A.  411  Taylor,  5  Dana  (Ky.),  157;  Morri- 
and  note;  Smith  v.  Mason,  44  Neb.  son  v.  Poyntz,  7  Dana  (Ky.),  307, 
610,  63  N.  W.  41.  32  Am.  Dec.  92;   Henderson  v.  Mc- 

4.  Hawker  v.  Moore.  40  W.  Va.  Duffce,  5  N.  H.  38,  20  Am.  Dec.  557 
49,  20  S.  E.  848;  McDonald  v.  Ma-  and  note;  Broadsman  v.  Paige,  11 
gruder,  3  Pet.  (U.  S.)  470;  Longley  N.  H.  431;  Burroughs  v.  Lott,  19 
V.  Griggs,  10  Pick.    (Mass.)    121.  Cal.  125;  Smith  v.  Mason,  44  Neb. 

I.  Acers  v.   Curtis,   68   Tex.   423,  610.  63  N.  W.  41. 

4  S.  W.  551:  Liddell  v.  Wiswell,  59  2.  Moore  v.  Bruner.  31  111.  App. 

Vt.   365,  8  A.   680;   Michael  v.   Al-  402. 
bright,  126  Ind.  172,  25  N.  E.  902; 

443 


§§    391-393  OPERATIOIT    OF    CONTRACTS.  Oh.    14 

of  sureties,  without  regard  to  their  solvency.^  In  some  of  the 
States  contribution  is  given  at  law  as  well  as  in  equity,  ac- 
cording to  the  number  of  solvent  sureties,  and  in  some  States 
this  is  law  under  the  statute.* 

§  392.  Must  the  principal  debtor  be  insolvent. — According 
to  the  weight  of  authority  at  law  the  right  of  the  surety  to  re- 
cover contribution  from  a  co-surety  in  any  manner  depends 
upon  the  insolvency  of  the  principal  debtor,^  although  the  de- 
cisions upon  this  point  are  not  harmonious.  Therefore,  in  order 
to  recover  contribution  it  is  necessary  by  the  weight  of  authority, 
to  aver  and  prove  the  insolvency  of  the  principal  debtor,  and 
this  is  so  in  equity.^ 

§  393-  Sureties  discharged  by  act  of  promisee. — The  prom- 
isee may  give  the  principal  debtor  privileges  which  will  dis- 
charge the  sureties.  Thus,  where  the  principal  and  one  of  the 
sureties  executed  their  note,  which  was  accepted  by  the 
creditor,  in  payment  of  the  former  note,  this  has  the  effect  to 
release  and  discharge  the  sureties  who  did  not  sign  the  last  note, 
from  their  obligation  to  the  creditor,  as  well  as  from  contribu- 
tion to  their  co-surety  who  signed  the  new  note.^  So  if  the 
creditor  extends  the  time  of  the  payment  of  the  note,  for  a 
valuable  consideration,  it  releases  the  sureties  who  do  not  agree 
to  it  f  but  if  there  was  no  consideration  for  the  extension  of  the 
time,  the  agreement  is  void,  and  sureties  are  not  discharged.' 

3.  Moore  v.  Bruner,  31  111.  App.  Mo.  App.  143;  Compare  HaAvker  v. 
403.  Moore,  40  W.  Va.  49,  20  S.  E.  848; 

4.  Pingrey  on  Surety,  and  Guar-  Pingrey  on  Surety,  and  Guaranty, 
anty,  sees.  196,  197.  sec.  197. 

1.  Roberts  v.  Adams,  6  Port.  1.  Bell  v.  Boyd,  76  Tex.  133,  13 
(Ala.)      361,     31     Am.     Dec.     694;        S.  W.  232. 

Brandt  on  Suretyship,  290;   Judah  2.  Gordon  v.  Bank,  144  U.  S.  97, 

V.    Mieure,    5    Blackf.     (Ind.)     171;  12    S.    Ct.    657;    Chemical    Co.    v. 

Buckner  v.   Stewart,   34  Ala.   529;  Pegram,  112  N.  Car.  614,  17  S.  E. 

Sloo  V.  Pool,  15  111.  47;  Rankin  v.  298;  Rees  v.  Berrington,  2  Ves.  Jr. 

Collins,  50  Ind.  158.  540. 

2.  Smith  V.  Mason,  44  Neb.  610,  3.  Burr  v.  Boyer,  2  Neb.  265; 
63  N.  W.  41 ;  Mosely  v.  Fulleton,  69  Dillon  v.  Russell,  5  Neb.  484;  Smith 

444 


Cb.   14 


CONTRACTUAL    EELATIONS. 


§§  393,  304 


But  the  mere  voluntary  forbearance  on  tbe  part  of  tbe  creditor, 
enlarging  tbe  time  of  payment,  witbout  consideration,  or  tbe 
mere  failure  to  institute  an  action  against  tbe  principal  debtor 
wben  tbe  debt  becomes  due,  will  not  alone  discbarge  tbe  surety.* 
But  if  tbe  surety  demands  tbat  tbe  creditor  brings  suit  to  col- 
lect tbe  note,  tbe  latter  must  do  it  witbin  a  reasonable  time, 
for,  after  sucb  demand,  if  the  principal  becomes  bankrupt,  and 
tbe  creditor  bas  been  negligent  in  bringing  suit,  tbe  surety  will 
be  discbarffed. 


§  394,  In  case  of  tort. — Between  wrongdoers  tbere  can  be  no 
contribution,  tbe  exception  being  Avbere  tbe  act  is  not  clearly 
illegal  in  itself.^  But  in  determining  wbetber  one  joint  wrong- 
doer is  entitled  to  contribution  from  anotber  tbe  test  is,  wbetber 
tbe  former  knew,  at  tbe  time  of  tbe  commission  of  tbe  act  for 
wbicb  be  bas  been  compelled  to  respond,  tbat  sucb  act  was 
wrong-ful.^  If  all  know  tbat  tbeir  act  is  wrong,  none  can 
compel  contribution  from  bis  co-defendant.^ 

Tbis  rule  will  not  affect  cases  of  indemnity  where  one  man 
employs  anotber  to  do  acts  not  unlawful  in  themselves  for  tbe 
purpose  of  asserting  a  right* 


V.   Mason,   44   Neb.   610,   63   N.   W. 
41. 

4.  Smith  V.  Mason,  44  Neb.  610, 
63  N.  W.  41;  Dillon  v.  Russell,  5 
Neb.  484;  Sheldon  v.  Williams,  11 
Neb.  272,  9  N.  86.  See  Pinffiey  on 
Surety,  and  Guaranty,  sees.  100- 
137. 

1.  Farwell  v.  Becker,  129  111.  272, 
21  N.  E.  792,  16  Am.  St.  Rep.  267; 
Betts  V.  Gibbins,  2  Ad.  &  El.  57. 

2.  Torpy  v.  Johnson,  43  Neb.  882, 
62  N.  W.  2.53;  Johnson  v.  Torpy, 
35  Neb.  604,  53  N.  W.  575.  37  Am. 
St.  Rep.  447 ;  Jacobs  v.  Pollard,  10 
Cush.  (Mass.)  287,  57  Am.  Dec. 
105;  Armstrong  Co.  v.  Clarion  Co., 


66  Pa.  St.  218,  5  Am.  Rep.  368; 
Lowell  V.  Railroad  Co.,  23  Pick. 
(Mass.)  24,  34  Am.  Dec.  33  and 
note;  Acheson  v.  ifiller.  2  Ohio  St. 
203,59Am.  Dec.  663;  Barley  v.  Bus- 
sing, 28  Conn.  455;  Adamson  v. 
Jarvis,  4  Bing.  66. 

3.  Merryweather  v.  Nixan.  8 
Term  R.  186.  See,  also,  Nichols  v. 
Nowling,  82  Ind.  488;  Miller  v. 
Fenton,  11  Paige  (N.  Y.),  18;  Vose 
V.  Grant,  15  !Mass.  505. 

4.  Merryweather  v.  Nixan.  8 
Term  R.  186.  See.  also.  Betts  v. 
Gibbins,  2  Ad.  &  El.  57 ;  Farwell  v. 
Becker,  129  111.  272,  21  N.  E.  792. 
16  Am.  St.  Rep.  267. 


445 


CHAPTER  XV. 
Interstate  Contracts. 


ARTICLE  I. 
Law  of  the  Place  of  Contkact. 

Section  395.  Validity  of  Contract — What  Law  Governs. 

396.  Intention  and  Agreement. 

397.  Capacity  of  Parties. 

398.  Sale  of  Personalty. 

399.  Bills  and  Notes. 

400.  Marriage  Contracts. 

401.  Married  Women. 

402.  Chattel  Mortgage  Lien  Follows  the  Property. 

403.  Conveyances  of  Real  Estate. 

404.  Insurance  Contracts. 

405.  Assignment  of  Policy  of  Insurance. 

406.  Assignment  of  Property. 

407.  As  to  the  Situs  of  Personal  Property. 

§  395-  Validity  of  contracts  —  What  law  governs. —  Inter- 
state laws,  or  private  international  law,  interpret  the  con- 
tractual relations  of  persons  in  different  States  and  nations, 
who  have  interstate  or  international  dealings.  Of  course  the 
law  of  one  State  has  no  force  outside  of  the  State,  but  in  most 
cases,  through  comity  of  States,  it  is  applied  in  other  juris- 
dictions. 

The  general  rule  is  that  if  a  contract  is  valid  where  made  it 
is  valid  everywhere  and  will  be  e^iforced  in  other  jurisdictions, 
that  is,  by  the  lex  fori.  However,  there  are  exceptions  to  this 
general  rule  which  may  be  classified  as  follows:  (1)  When 
the  enforcement  of  the  interstate  contract  would  militate  against 
the  policy  of  the  forum;     (2)   where  the  enforcement  of  the 

446 


Cll.     15  INTERSTATE    OONTKACTS.  §    .'JO  5 

interstate  contract  would  work  injury  or  injustice  to  the  people 
of  the  forum;  (3)  where  the  enforcement  would  contravene 
the  principles  of  morality  and  decency  of  the  community  of  the 
forum;  (4)  where  a  foreign  or  interstate  law  is  penal  in  its 
nature;  (5)  where  the  contract  relates  to  the  transfer  of  title 
to  real  estate  in  the  forum. 

In  short,  the  interstate  contract  will  not  he  enforced  if  it  is 
clearly  contrary  to  good  morals,  or  repugnant  to  the  established 
policy  or  positive  statute  of  the  jurisdiction  in  which  it  is  sought 
to  be  enforced/  Thus,  a  contract  of  subscription  to  capital  stock 
of  a  corporation  made  in  Maryland,  but  to  be  performed  in  the 
State  where  the  corporation  is  chartered,  is  to  be  governed  by  the 
laws  of  the  State  w-here  the  corporation  is  created.^  So,  also  deeds 
and  notes  relating  to  real  property  located  in  Maine,  although 
dated  in  another  State  but  delivered  in  Maine,  will  be  governed 
by  the  law  of  the  latter.^  And  a  guaranty  executed  and  to  be 
performed  in  Louisiana  is  a  Louisiana  contract  and  is  governed 
by  the  laws  of  that  State,  though  designed  to  obtain  credit  in 
another  State/ 

Although  a  stipulation  in  a  contract  of  carriage,  relieving  the 
carrier  from  liability  for  injuries  resulting  from  the  negligence 
of  his  servants,  is  against  public  policy  of  a  State,  if  valid  in 
the  country  where  made,  it  will  be  enforced  in  the  former,  if  it 
is  not  immoral  or  illegal,  on  principle  of  comity/ 

1.  Minor's    Conf.    L.    p.    9;    Til-  Rep.  23  and  note;   Sullivan  v.  Sul- 

aen  v.  Blair.  21  Wall.   (U.  S.)  241;  livan,  70  Mich.  583,  38  N.  W.  472; 

Wayne    County    Savings    Bank    v.  Fessenden  v.  Taft.  65  N.  H.  39,  17 

Low,  81  N.  Y.  566,  37  Am.  Rep.  533;  A.  713;   Atlantic  Phosphate  Co.  v. 

Havvley  v.  Bibb,  69  Ala.  52:  Stix  v.  Ely,  82  Ga.  438,  9  S.  E.  170. 

Matthews,    75    Mo.    96;    Swann    v.  2.  Fear  v.  Bartlett,  81  Md.  435, 

Swann,  21  Fed.  Rep.  299;  Burns  v.  32   A.    322,   33   L.   R.   A.    721    and 

Railroad  Co.,  113  Ind.  169,  15  N.  E.  note. 

230 ;  Flagg  v.  Baldwin,  38  N.  J.  Eq.  3.  Holt  v.  Knowlton.  86  Me.  456, 

219;  Hyatt  v.  Bank,  8  Bush.   (Ky.)  29  A.  1113. 

193;    Milliken  v.   Pratt,   123  Mass.  4.  Lachman  v.  Block,  47  La.  Ann. 

374.  28  Am.  Rep.  241;  Hill  v.  Spear,  505. 

50N.  H.  253,  9  Am.  Rep.  205;  Sond-  5.  Milliken   v.   Pratt,    125   Mass. 

heim  v.  Gilbert.  117  Ind.  71,  18  N.  374,  28  Am.  Rep.  241;   Scudder  v. 

E.  687.  5  L.  R.  A.  432,  10  Am.  St.  Bank,    91    U.    S.    406;    Fonseca    v. 

44Y 


§§    395,  396  OPERATION    OF    CONTEACTS.  Cll.    15 

And  where  an  assignment  of  a  judgment  conveys  the  legal 
title,  the  assignee  can  sue  on  it  in  her  own  name  in  another 
jurisdiction  as  the  lex  loci  governs.^  So  succession  to  a  tangible 
thing  may  be  taxed  wherever  the  property  is  found.^  So  the 
transfer  of  money  of  a  non-resident,  deposited  in  a  certain  state, 
depends  upon  the  law  of  that  State.  The  universal  succession 
can  be  taxed  in  one  State,  and  the  singular  succession  in 
another.  Thus,  B  domiciled  in  Illinois,  deposited  in  a  !N"ew 
York  bank  a  certain  amount  of  money  to  be  left  there  tempo- 
rarily, under  conditions,  but  he  died  before  withdrawing  the 
deposit.  A  succession  tax  was  imposed  by  the  law  of  Illinois 
upon  all  his  property  including  the  deposit  in  ]^ew  York.  The 
State  of  ]^ew  York  imposed  a  succession  tax  upon  the  deposit 
in  that  State.  Both  succession  taxes  were  legally  imposed.* 
The  fact  that  two  States,  dealing  each  within  its  own  law  of 
succession  and  transfer,  both  of  which  a  legatee,  or  legal  repre- 
sentative of  the  estate  has  to  invoke  for  his  rights,  have  taxed 
the  right  which  they  respectively  confer,  gives  no  cause  for 
complaint  on  constitutional  grounds.^  One  and  the  same  State 
may  tax  on  the  one  hand  according  to  the  fact  of  power,  and  on 
the  other,  at  the  same  time,  according  to  the  fiction  that,  in  suc- 
cession after  death,  personalty  follows  the  person  and  domicil 
governs  the  whole. 

§  396.  Intention  and  agreement. — ^Where  a  contract  is  en- 
tered into  between  parties  residing  in  different  countries,  where 
different  systems  of  laws  prevail,  it  is  a  question  in  each  case 
with  reference  to  what  law  the  parties  contracted,  and  according 
to  what  law  it  was  their  intention  that  their  right,  either  under 

Steamship  Co.,   153  Mass.   553,  27  7.  Eidmon  v.  Martinez,  184  U.  S. 

N.  E.  665,  12  L.  R.  A.  340  and  note,  578,  22  S.  Ct.  515. 

25    Am.    St.    Rep.    6b0;    Regan    v.  8.  Blackstone   v.   Miller,    188    U. 

Steamship   Co.,    160  Mass.   356,   35  S.  189,  23  S.  Ct.  277. 

N.  E.  1070,  39  Am.  St.  Rep.  484.  9.  Coe  v.  Erral,  116  U.  S.  517,  6 

6.  Martin    v.    Wilson.    120    Fed.  S.  Ct.  475 ;  Knowlton  v.  Moore,  178 

Rep.  202,  58  C.  C.  A.  181.  U.  S.  53,  20  S.  Ct.  747. 


448 


Ch.    15  INTERSTATE    CONTBACTS.  §    396 

the  whole  or  in  part  of  the  contract,  should  be  determined.^ 
So  a  life  insurance  policy  issued  in  Pennsylvania  which  con- 
tains a  stipulation  that  it  is  a  contract  and  to  be  executed  in 
the  State  of  New  York,  and  shall  be  construed  only  according 
to  the  laws  of  that  State,  will  be  construed  as  though  actually 
executed  and  delivered  in  New  York.^  This  is  in  accordance 
with  the  principle  that  where  parties  make  a  contract  of  loan 
in  one  State  to  be  performed  in  another,  they  may  in  good  faith 
and  without  intent  to  evade  the  law,  agree  that  the  law  of  either 
State  shall  control.^ 

However,  in  many  instances  the  intention  cannot  control,  but 
the  law  and  public  policy  must  prevail  which  the  intent  of  the 
parties  cannot  overthrow.  Thus,  a  married  woman  who  makes 
a  contract  prohibited  by  law,  will  not  be  held  liable  on  the  con- 
tract merely  because  she  intended  to  make  a  valid  contract.  So 
a  contract  void  because  it  is  not  in  writing  cannot  be  made  valid 
and  enforced  because  the  maker  intended  it  to  be  valid.  And 
so  if  one  agrees  to  do  sometliing  prohibited  by  law,  his  intent 
to  make  a  valid  contract  does  not  control.  So  if  one  makes  a 
contract  whose  consideration  is  illegal  or  immoral,  his  intent  to 
bind  himself  does  not  make  it  a  valid  contract.*  So,  in  general, 
whether  the  question  concerns  an  element  of  the  contract  de- 
pendent upon  the  parties'  intention  or  that  independent  of  the 
intention,  the  law  governing  is  that  of  the  situs  of  the  particular 
element,  circumstance,  or  act  in  controversy.  If  the  contract  is 
void  in  some  particular  element,  such  as  tlie  mode  of  entering 
into  it,  or  the  act  done  as  the  consideration  of  the  promise,  by  the 
law  governing  that  element,  the  courts  of  every  State  will  np- 

1.  Hamlyn  v.  Talisker  Distillery  Parsons,  55  Minn.  520,  57  X.  W. 
(1894),  A.  C.  202.  311;  Jones  v.  Trust  Co..  7  S.  Dak. 

2.  Griesemer  v.  Ins.  Co.,  10  122,  63  X.  W.  553.  See,  also,  Whit- 
Wash.  202,  38  P.  1031.  aker   v.   Security   Co..   97    Ga.    329, 

3.  Robinson  v.  Bland,  2  Burr.  22  S.  E.  978;  United  States  Sav.  &. 
1177;  Miller  V.  Tiffany,  1  Wall.  (U.  L.  Asso.  v.  Seott,  98  Ky.  695.  34 
S.)  298;  Martin  v.  Johnson,  84  Ga.  S.  W.  Rep.  235;  Bascom  v.  Zediker, 
481,  10  S.  E.  1092,  8  L.  R.  A.  170  48  Neb.  380.  67  N.  W.  148. 

and    note;    Mott    v.    Rowland,    85  4.  Minor's  Confl.  L.  p.  364. 

Mich.  561,  48  N.  W.  638;  Smith  v. 

4-19 


§§  396,  397  oppiRATioN  of  contracts.  Cli.   15 

hold  the  hiw  and  policy  of  the  State  where  the  particular  ele- 
ment in  question  arises  or  has  its  situs.  And  the  fact  that  the 
parties  had  in  view  a  different  law  governing  the  element  has 
no  effect  whatever.^  The  dignity  of  a  local  court  is  not  in- 
volved when  a  contract  is  made  between  citizens  of  foreign 
States  Mdio  make  any  reasonable  arrangement  for  the  settlement 
of  their  disputes,  where  there  is  only  the  narrowing  of  the 
forum-area,  and  not  an  attempt  to  deprive  a  party  of  the  right 
of  appeal  to  the  courts.  Such  an  arrangement  is  analogous  to 
the  limitation  by  contract  of  the  time  within  which  suits  may 
be  brought.  Thus,  in  Mittenthal  v.  Mascagni,^  a  contract  came 
before  the  court,  partly  to  be  performed  in  Italy,  but  primarily 
in  the  United  States.  It  also  provided  that  it  should  be  gov- 
erned by  the  laws  of  Italy  and  that  any  suit  brought  under  it 
should  be  instituted  in  the  courts  of  Florence,  Italy,  except  that 
Mascagni  might  sue  for  his  compensation  in  the  courts  of  !Mew 
York.  This  contract  was  valid  and  meant  to  give  exclusive  jur- 
isdiction to  the  Italian  courts.  The  court  held  that  parties  may 
agree  to  arbitration  in  preliminary  and  incidental  matters  of 
dispute,  so  long  as  the  right  of  appeal  to  the  courts  for  the  deter- 
mination of  any  substantial  question  of  liability  is  retained. 

§  397-  Capacity  of  parties. — Continental  jurists  have  main- 
tained that  personal  laws  of  the  domicil,  affecting  the  status  and 
capacity  of  all  inhabitants  of  a  particular  class,  bind  them 
wherever  they  may  go,  upon  the  principle  that  each  State  has 
the  rightful  power  of  regulating  the  status  and  condition  of  its 
subjects,  and,  being  best  acquainted  with  the  circumstances  of 
climate,  race,  character,  manners,  and  customs,  can  best  judge 
at  what  age  young  persons  my  begin  to  act  for  themselves,  and 
whether  and  how  far  married  women  may  act  independently  of 
their  husbands ;  that  laws  limiting  the  capacity  of  infants  or  of 
married  women  are  intended  for  their  protection,  and  cannot 
therefore  be  dispensed  with  by  their  agreement;    that  all  civil- 

5.  See  Union  Nat.  Bank  v.  Chap-  6.   183  Mass.  19,  C6  N.  E.  425,  60 

man,  169  N.  Y.  538,  62  N.  E.  672,        L.  R.  A.  812,  97  Am.  St.  Rep.  404. 
57  L.  R.  A.  513  and  note. 

450 


Cll.     15  INTERSTATE    CONTILVCTS.  §    397 

ized  States  rocoo^iizo  the  incapacity  of  infants  and  married 
women;  and  that  a  person,  dealing  with  cither,  ordinarily  has 
notice,  by  the  apparent  age  or  sex,  that  the  person  is  likely  to  be 
of  a  class  whom  the  laws  protect,  and  is  thns  pnt  npon  inquiry 
how  far,  by  the  law  of  the  domicil  of  the  person,  the  protection 
extends.  Hence,  these  jurists  generally  hold  that  incapacity  of 
the  domicil  attaches  to  and  follows  the  person  wherever  he 
may  go. 

However,  this  is  not  the  doctrine  of  the  common  law ;  the 
general  current  of  tlio  English  and  American  authorities  holds 
that  a  contract,  which  by  the  law  of  the  place  is  recognized  as 
lawfully  made  by  a  capable  person,  is  valid  everywhere, 
although  the  person  Avould  not  under  the  law  of  the  domicil  be 
deemed  capable  of  making  it.^ 

This  is  the  accepted  doctrine  in  this  country  in  so  far  as  it 
relates  to  the  enforcement  of  contracts  in  courts  other  than  those 
of  the  domicil.  Quite  a  different  question  is  presented  when  the 
action  is  brought  in  the  forum  of  the  domicil.  In  such  a  case  a 
very  important  qualification  of  private  international  law  is  to  be 
considered,  and  this  is  that  no  State  or  nation  will  enforce  a 
foreign  law  which  is  contrary  to  its  fixed  and  settled  policy.* 
If  a  party  makes  a  contract  in  the  State  of  his  domicil,  though 
the  contract  is  to  be  performed  elsewhere,  the  law  of  his  domicil 
governs  as  to  this  capacity  to  make  the  contract.^  But  the 
capacity  of  the  party,  when  not  at  his  domicil,  to  contract  is 
governed  by  his  actual  situs  at  the  time  he  makes  it,  the  lex 
loci  celebrationis.  But  when  the  domicil  of  the  party  is  the 
forum,  in  order  to  protect  th(>  citizens,  the  lex  fori  will  govern.* 

1.  Story  on  Confl.  of  L.  103,  104;  211,  45  N.  E.  737,  36  L.  R.  A.  771. 
Compare  Uliarton  on  Coiill.  of  L.  57  Am.  St.  Rep.  452;  Freeman's 
112,  118.  Appeal,  68  Conn.  533.  32  A.  420,  37 

2.  Story  on  Confl.  of  L.  37;  Bank  L.  R.  A.  452,  57  Am.  St.  Rep.  112; 
V.  Earle,  13  Pet.  (U.  S.)  519;  Arm-  Hill  v.  Bank,  45  N.  H.  300;  Arm- 
strong V.  Best,  112  N.  Car.  59,  17  strong  v.  Best.  112  X.  Car.  59,  17 
S.  E.  14,  25  L.  R.  A.  188.  34  Am.  S.  E.  14,  25  L.  R.  A.  188.  34  Am. 
St.  Rep.  473;  Taylor  v.  Sharp,  108  St.  Rep.  473. 

N.  Car.  377,  13  S.  E.   138.  4.  Robinson   v.    Queen.   87   Tcnn. 

3.  Poison  V.   Stewart,   167   Mass.        445,  11  S.  W.  38,  3  L.  R.  A.  214,  10 

451 


§§    397,  398  OPERATION    OF    CONTRACTS.  Ch.    15 

If  by  the  lex  celebrationis  the  parties  are  incapable  of  making  a 
contract,  no  other  State  will  recognize  such  a  contract.  If  the 
contract  is  void  at  the  place  of  its  execution,  it  is  void  every- 
where.^ So  if  the  parties  enter  into  a  contract  in  a  particular 
State,  the  law  of  that  State  alone  decides  whether  the  parties 
had  ability  to  contract. 

§  398.  Sale  of  personalty. — If  no  place  is  designated  by  the 
contract,  the  place  of  sale  is  the  point  at  which  goods  are  ordered 
or  purchased,  set  apart  and  delivered  to  the  vendee,  or  to  a  com- 
mon carrier,  who,  for  the  purpose  of  delivery,  represents  the 
vendee.^ 

Personal  property  has  a  legal  situs  which  is  the  domicil  of  the 
owner,  and  an  actual  situs,  the  place  where  it  is  located.  Any 
transfer  of  it,  if  valid  where  made,  will  pass  title  though  its 
actual  situs  is  in  another  State.^ 

Where  a  place  of  performance  is  fixed  by  the  parties,  the  pre- 
sumption is  that  the  parties  contract  with  reference  to  the  law 
of  such  place,  the  lex  loci  solutionis.^  Accordingly,  a  written 
contract  for  sale  of  lumber,  to  be  sawed,  inspected,  paid  for, 
delivered  and  received  in  Mississippi  is  governed  by  the  laws 
of  that  State,  both  as  to  obligations  and  execution,  though  made 
and  signed  in  Tennessee.^  It  is  not  the  lex  loci  contractus  that 
governs  in  such  cases,  but  the  lex  rei  sitae;  that  is,  the  law  of 

Am.  St.  Rep.  690;  Milliken  v.  Pratt,  Partee  v.   Silliman,   44   Miss.    272; 

125   Mass.   374,   28   Am.   Rep.   241;  Cantee    v.    Bennett,    39    Tex.    303; 

First  Nat.  Bank  v.  Shaw,  109  Tenn.  Mayo   v.   Assurance   Soc,   71    Miss. 

237,  70  S.  W.  807,  59  L.  R.  A.  498.  590,  15  So.  791. 

5.  Campbell  v.  Crampton,  2  Fed.  3.  Dalton   v.    Murphy,    30    Miss. 

Rep.  417.  59;   Hart  v.  Machine  Co.,  72  Miss. 

1.  Perlman  v.  Satorius,  162  Pa.  809,  17  So.  769;  Milwaukee,  etc.  R. 
St.  320,  29  A.  852,  42  Am.  St.  Rep.  R.  Co.  v.  Smith,  74  III.  197 ;  Cook 
834;  Schumacher  v.  Eley,  24  Pa.  v.  Moffat,  5  How.  (U.  S.)  295; 
St.  521;  Sehwertz  v.  Dwyer,  53  Pa.  Hyatt  v.  Bank,  8  Bush  (Ky.),  193; 
St.  335;  Garbracht  v.  Common-  Osgood  v.  Bauder,  8'2  Iowa,  171,  47 
wealth,  96  Pa.  St.  449,  42  Am.  Rep.  N.  W.  1001. 

550.  4.  Hart  v.  Madhine  Co.,  72  Miss. 

2.  Ames  Iron  Works  v.  Warren,       809,  17  So.  769. 
76    Ind.    512,    40    Am.    Rep.    258; 

452 


C'h.    15  INTERSTATE    CONTRACTS.  §    398 

the  place  where  tJie  property  is  located  at  the  time  of  the  sale. 
Any  other  nilo  would  lead  to  endless  confusion,  and  all  sales  of 
personal  property  made  outside  of  a  State  would  be  subject  to 
review  as  soon  as  the  property  was  brought  within  the  Stata' 

A  sale,  if  valid  where  made,  is  valid  as  between  the  parties  in 
every  jurisdiction  where  it  is  called  into  question ;  if  invalid 
where  made  it  is  invalid  in  every  other  State.® 

Hence,  if  the  sale  of  certain  articles  is  invalid  in  one  State 
but  valid  in  another  jurisdiction  where  the  sale  is  made,  it  is 
valid  in  the  former  State,'  though  the  vendor,  if  he  knew  of  the 
prohibition,  will  not  be  allowed  to  enforce  the  sale  in  the  former 
State.^  And  the  vendor  should  not  be  allowed  to  collect  the 
price  in  any  State,  tlie  purpose  being  to  violate  law  of  another 
State.' 

The  place  of  the  sale  is  where  the  final  act  is  completed.  The 
place  where  the  order  is  given,  or  from  where  it  is  sent  to  the 
vendor,  furnishes  no  safe  guide  in  fixing  the  locus  contractus}'^ 
If  an  agent  has  full  authority  to  make  a  sale,  the  situs  of  the 
sale  is  where  the  agent  actually  entered  into  the  contract.  If 
he  has  no  authority  to  pass  the  title,  but  takes  orders  to  send  to 
his  principal  who  passes  upon  tliem,  then  the  situs  of  the  sale 
is  where  the  principal  acts." 

5.  Kurner  v.  O'Xeil.  39  W.  Va.  446,  430  and  note.  Bvit  this  rule  is 
515,  20  S.  E.  589.  See,  also.  Gray  not  adopted  by  all  the  courts.  See 
V.  Iron  Work  Co.,  66  Fed.  Rep.  600;  Hill  v.  Spear,  50  N.  H.  253,  9  Am. 
Barrett  V.  Kelley,  66  Vt.  515,  27  A.  Rep.  205:  Mclntyre  v.  Parks,  3 
496,  44  Am.  St.  Rep.  862;  McLane  Met.    (Mass.)   207. 

V.   Creditors,   47   La.   Ann.    134,    16  9.  Weil    v.     Golden.     141     Mass. 

So.  764.  364.  6  X.  E.  229. 

6.  Fowler's  Appeal.  125  Pa.  St.  10.  State  v.  O'Xeil,  58  Vt.  140, 
388,  17  A.  431,  11  Am.  St.  Rep.  2  A.  586,  56  Am.  Rep.  557;  Tegler 
902;  Wenestine  v.  Freyer,  93  Ala.  v.  Shipman,  33  Iowa,  194,  11  Am. 
257,  9  So.  285,  12  L.  H.  A.  700  and  Rep.  118;  Newman  v.  Sheriff.  43 
note.  La.  Ann.  712.  9  So.  439;   Sullivan 

7.  Merchants'  Bank  v.  Spalding,  v.  Sullivan,  70  Mich.  583.  38  X.  W. 
9  N.  Y.  58.  472. 

8.  Webster  v.  Munger.  8  Gray  11.  Erman  v.  Lehman.  47  La. 
(Mass.),  584;  Graves  v.  Johnson,  Ann.  1651.  18  So.  650;  Claflin  v. 
156  Mass.  211,  30  X.  E.  818,  15  L.  Mayer,  41  I^a.  Ann.  1048.  7  So. 
R.  A.  834  and  note,  32  Am.  St.  Rep.  139. 

453 


§§    398,  399  OPERATION    OF    CONTEACTS.  Ch.    15 

The  lex  loci  contractus  governs  in  the  interpretation  of  terms 
used  and  their  legal  meaning.  So  the  law  of  the  place  of  sale 
governs  the  question  as  to  whether  the  vendor  warranted  the 
validity  of  bonds  sold.^^  So  in  a  deed  of  personalty,  "  heirs 
at  law"  must  be  interpreted  according  to  the  place  of  the  sale." 

A  gift  causa  mortis  is  a  voluntary  and  contractual  act,  and 
hence  the  lex  loci  contractus  governs  it."  The  title  in  the 
donee  is  conditional  and  revocable,  but  it  is  not  testamentary, 
and  so  the  lex  domicillii  cannot  control  the  gift,  though  this 
solution  is  not  free  from  doubt. 

§  399.  Bills  and  notes. — A  promissory  note  is  not  complete 
until  it  has  been  delivered,  and  it  takes  effect  only  from  the  day 
of  its  delivery.  The  place  of  contract  evidenced  by  a  promissory 
note  does  not  depend  upon  where  the  note  is  dated,  but  upon 
the  place  where  delivered.  It  is  the  delivery  of  the  note  that 
consummates  the  contract.^  As  between  the  drawer  and  the 
payee  the  place  of  performance  is  the  place  where  the  bill  is 
drawn.^  Where  a  bill  of  exchange  has  been  endorsed  in  a  for- 
eign country,  in  a  form  which  would  pass  the  title  if  done  in 
the  United  States,  yet  inadequate  there,  it  is  invalid  in  this 
country.^ 

In  general  a  note  is  governed  by  the  law  of  the  place  where  it 
is  payable.^  But  a  note  secured  by  mortgage  on  land  in  another 
State,  is  not  necessarily  a  contract  of  the  former  State.^ 

12.  Meyer  v.  Richards,  163  U.  S.  3.  Trimley  v.  Vignier,  1  Bing.  N. 
.385,  16  S.  Ct.  1148.  C.  151,  6  Car.  &  P.  25. 

13.  Codman  v.  Krell,  152  Mass.  4.  Tenant  v.  Tenant,  110  Pa.  St. 
214,  25  N.  E.  90.  478,    1    A.   532;    Barrett   v.   Dodge, 

14.  Emery  v.  Clough,  63  X.  H.  16  R.  I.  740,  19  A.  530,  27  Am.  St. 
552,  4  A.  796.  Rep.  777;   Compare  American  Free- 

1.  Wells  V.  Vansickle,  64  Fed.  hold  Land  Mort.  Co.  v.  Sewall,  92 
Rep.  944;  Hyde  v.  Goodnow,  3  N.  Ala.  163,  9  So.  143,  13  L.  R.  A.  299; 
Y.  266;    Davis  v.  Coleman.  7   Ired.       Kilcrease  v.  Johnson,  85  Ga.  600.  11 

(N.  Car.)  424.  S.    E.    870;    Mott    v.    Rowland.    So 

2.  Warner  v.  Bank,  6  S.  Dak.  Mich.  561,  48  N.  W.  638;  New  Eng- 
152,  60  N.  W.  746;  Freese  v.  land  Mortg.  Co.  v.  McLaughlin,  87 
Brownell,  35  N.  J.  L.  285,   10  Am.  Ga.  1,  13  S.  E.  81. 

Rep.    239;    Hunt    v.    Standart.    15  5.  Whitaker  v.   Security   Co..   97 

Ind.  33,  77  Am.  Dec.  79.  Ca.  329,  22  S.  E.  978;  United  States 

454 


Cll.     15  lA'TKKSTATE    CONTRACTS.  §    399 

In  the  absence  of  any  direct  evidence  as  to  where  a  note  "vvas 
delivered,  it  will  be  presumed  that  it  was  where  the  maker 
resided — that  being  the  place  where  it  was  dated  and  signed — 
and  it  will  be  payable  there  and  governed  by  the  laws  of  that 
State  as  to  negotiability,  thongh  describing  the  payee  as  of  a 
certain  place  in  another  State.^ 

Whether  a  note  is  negotiable  as  to  maker  is  governed  by  the 
law  of  the  place  where  payable.'  The  lex  sohifionis  governs  as 
to  whether  the  holder  of  a  note  is  a  bona  fide  purchaser  for 
value  ;^  lex  solutionis  governs  as  to  days  of  grace  ;^  also  the 
presentment,  notice  of  dishonor,  protest,  and  the  like  ;^*'  and  the 
rate  of  interest  unless  otherwise  stipulated,^^  but  the  lex  cele- 
brationis governs  the  interest  after  maturity  if  no  stipulation 
controls.^"  But  if  the  interest  agreed  upon  is  that  of  the  lex  loci 
solutionis,  that  must  control  the  interest  after  maturity.^^  This 
question  is  now  generally  regulated  by  statute,  and  the  interest 
is  the  legal  rate  after  maturity^^  in  some  States ;  but  the  law 
varies  and  local  statutes  must  be  consulted. 

The  general  rule  holds  as  to  endorsements.  So  a  contract  of 
endorsement  of  a  promissory  note  is  governed  by  the  law  of  the 
State  where  it  is  made,  although  the  note  itself  is  executed  and 
payable  in  another  State,  unless  the  intention  is  to  negotiate  the 
instrument  elsewhere. ^^ 

Sav.   &   L.   Asso.   v.    Scott,   98   Ky.  lO.  Wooley  v.  Lyon,  117  111.  244, 

695,  34  S.  W.  235 ;  Basoom  v.  Zedi-  (i  N.  E.  885,  57  Am.  St.  Rep.  867 ; 

ker,  48  Neb.  380,  67  N.  W.  148.  Mason    v.    Lake,    4    How.     (U.    S.) 

6.  Strawberry     Point     Bank     v.  262. 

Lee,  117  Mich.  122,  75  N.  W.  444.  11.  Scotland  County  v.  Hill,  132 

7.  Barrett  v.  Dodge,  16  R.  I.  U.  S.  107,  10  S.  Ct.  26;  Morris  v. 
740,  19  A.  530,  27  Am.  St.  Rep.  Wibaux,  159  111.  627,  43  N.  E. 
777;    Rose   v.    Park   Bank,   20   Ind.  837. 

94,  83  Am.  Dee.  306;  Supervisors  v.  12.  Cromwell   v.   County  of   Sac, 

Galbraith,  99  U.  S.  214.  96  U.  S.  51. 

8.  Webster  v.  Machine  Co.,  54  13.  Coghlan  v.  R.  R.  Co.,  142 
Conn.    394,    7    A.    22;    Woodruff  v.  U.  S.  101,  12  S.  Ct.  150. 

Hill,   116  Mass.   310.  14.  See    Kurd's    111.    Stat.    1903, 

9.  Skudder  v.  Bank.  91  U.  S.  406;        cli.  74,  sec.  2. 

Brown  v.  Jones,  125  lud.  375,  25  X.  15.  Spies    v.    Bank,    174    N.    Y. 

E.  452,  21   Am.  St.  Rep.  227.  222,  66  N.  E.  736,  61  L.  R.  A.  193. 

455 


§§    399,  400  OPERATION    OF    CONTEACTS.  Ch,    15 

And  so  the  transactions  of  a  broker  which  become  the  basis 
of  a  note  given  and  delivered  by  the  principal,  are  to  be  taken 
into  consideration  in  determining  the  validity  of  the  considera- 
tion at  the  situs  of  such  transactions." 

§  400.  Marriage  contracts. — The  validity  of  a  marriage  con- 
tract is  governed  by  the  place  where  made,  or  the  lex  loci,^  if 
not  controlled  by  statute.  When  the  statute  is  silent,  questions 
of  the  validity  of  marriages  are  to  be  determined  by  the  jus 
gentium,  the  common  law  of  nations,  the  law  of  nature  as  gen- 
erally recognized  by  all  civilized  peoples.  By  that  law,  the 
validity  of  a  marriage  depends  upon  the  question  whether  it 
was  valid  where  it  was  contracted ;  if  valid  there,  it  is  generally 
valid  everywhere.  The  only  exceptions  to  the  general  rule  in 
most  of  the  States  are:  (1)  Marriages  which  are  deemed  con- 
trary to  the  law  of  nature  as  generally  recognized  in  Christian 
countries.  (2)  Marriages  which  the  legislature  of  the  State 
has  declared  shall  not  be  allowed  any  validity,  because  contrary 
to  the  policy  of  the  laws. 

The  first  class  includes  only  those  void  for  polygamy  or  for 
incest.^ 

A  marriage  which  is  prohibited  in  a  State,  because  contrary 
to  the  policy  of  the  laws,  is  generally  valid  if  celebrated  else^ 
where  according  to  law  of  the  place,  even  if  the  parties  are 
citizens  and  residents  of  the  former  State,  and  have  gone  from 
it  for  the  purpose  of  evading  the  laws,  unless  the  legislature  has 
clearly  enacted  that  such  marriages  out  of  the  State  shall  have 
no  validity  in  the  State  from  which  the  parties  departed.^ 

16.  Winward  v.   Lincoln,   23   E,.  3.  Medway  v.  Needham,  16  Mass 

I.  476,  51  A.  106,  64  L.  R.  A.  160.  157,  8  Am.  Dec.  131  and  note;  Com 

1.  Clark  V.  Clark,  52  N.  J.  Eq.  monwealth  v.  Lane,  113  Mass.  458 
650,  36  A.  81.  18   Am.   Rep.   509   and  note.     See. 

2.  Wightman  v.  Wightman,  4  also,  Dickson  v.  Dickson,  1  Yerg, 
Johns.  Ch.  (N.  Y.J  343,  349-351;  (Tenn.)  110,  24  Am.  Dec.  444;  Com 
Sutton  V.  Warner,  10  Met.  (Mass.)  pare  Brook  v.  Brook,  9  H.  L.  Cas. 
451;  Stevenson  v.  Gray,  17  B.  Mon.  193,  3  Sm.  &  Giff.  481. 

(Ky.)    193;    Bowers  v.   Bowers,   10 
Rich.  Eq.   (S.  Car.)   551. 

456 


Ch.    15  INTEKSTATE    CONTBACTS.  §    400 

And  a  voidable  marriage  contracted  in  England,  and  never 
avoided  there,  mnst,  upon  tlie  subsequent  removal  of  the  parties 
to  Massachusetts,  and  the  question  arisino;  collaterally  in  an 
action  at  common  law,  be  deemed  valid  in  the  new  domicil, 
although  if  contracted  in  Massachusetts,  it  would  have  been 
absolutely  void.* 

Marriages  not  naturally  unlawful,  but  prohibited  by  the  law 
of  one  State,  and  not  of  another,  if  celebrated  where  they  are 
not  prohibited,  are  valid  in  a  State  where  they  are  not  allowed.^ 

If  the  parties  are  domiciled  in  one  State  where  they  cannot 
marry,  but  go  into  another  State  where  the  law  permits  them  to 
marry,  such  marriage  is  valid  if  impugned  in  any  State  other 
than  that  of  their  domicil.  If  such  marriage  is  questioned  in 
their  domicil,  another  rule  may  apply ;  the  decisions  are  in  con- 
flict and  not  reconcilable.  Two  doctrines  are  announced:  (1) 
The  first  is  that  the  lex  celebrationis  must  govern  the  capacities 
of  the  parties  to  enter  the  contract,  as  well  as  the  forms  of  the 
ceremony,  irrespective  of  the  domiciliary  law  of  the  parties,  if 
the  marriage  is  not  immoral.^  Under  this  doctrine  nothing  but 
a  statutory  prohibition  will  invalidate  such  marriage  at  the 
parties'  domicil.  (2)  The  other  doctrine  is,  that  if  the  domestic 
policy  is  so  important  and  pronounced,  or  evils  to  be  averted  are 
so  imminent,  as  to  justify  the  enforcement  of  the  lex  domicillii 
it  will  be  done  and  the  marriage  declared  void.^  But  this  ques- 
tion is  one  of  policy  which  each  State  will  determine  for  itself, 

4.  Sutton  V.  Warren,  10  Met.  7.  Ivinney  v.  Com.,  30  Gratt. 
(Mass.)  451.                                                   (Va.)    858,  32  Am.  Rep.  690;  Pen- 

5.  2  Kent's  Com.  85,  n.  a.;  Story  negar  v.  State,  87  Tenn.  244,  10  S. 
on  Confl.  L.  116.  W.  305,  2  L.  K  A.  703  and  note,  10 

6.  Van  Voorhis  v.  Brintnall,  86  Am.  St.  Rep.  648;  True  v.  Ranney, 
N.  Y.  18,  40  Am.  Rep.  505 ;  Medway  21  N.  H.  52,  53  Am.  Dec.  164; 
V.  Needham,  16  Mass.  157,  8  Am.  Jackson  v.  Jackson,  82  Md.  17,  33 
Dec.  131  and  note;  Stevenson  v.  A.  317,  34  L.  R.  A.  773;  State  v. 
Gray,  17  B.  Mon.  (Ky.)  193;  Cum-  Tutty,  41  Fed.  Rep.  753,  7  L.  R.  A. 
mington  v.  Belchertown,  149  Mass.  50;  Brook  v.  Brook,  9  H.  L.  Cas. 
223,  21  N.  E.  435,  4  L.  R.  A.   131  193. 

and  note. 


457 


§    400  OPERATION    OF    CONTRACTS.  Oil.     15 

90  far  as  its  own  citizens  are  concerned ;  and  the  question  may 
be  settled  by  the  courts  as  well  as  by  the  legislature.^ 

The  same  conflict  of  decisions  appears  in  other  cases  as  to  the 
marriage  of  relatives.^  The  variance  of  opinions  exists  as  to  the 
effect  of  a  foreign  marriage  by  a  guilty  party  to  a  divorce  suit 
who  has  been  prohibited  to  marry  again.^° 

When  a  contract  to  marry  is  executed,  it  creates  a  marital 
status  which  may  be  dissolved  by  divorce,  which  proceedings 
being  quasi  in  rem,  it  must  be  determined  what  is  the  res,  for 
the  court's  jurisdiction  in  proceedings  in  rem  depends  upon  its 
jurisdiction  of  the  res.  The  law  now  is  that  the  courts  of  one 
State  are  not  bound,  under  the  full  faith  and  credit  provision 
of  the  Federal  Constitution,  to  recognize  a  divorce  granted  in 
another  State,  in  which  neither  of  the  parties  was  hona^  fide 
domiciled,  even  if  the  statute  of  the  latter  State  purports  to 
confer  jurisdiction  upon  its  courts  under  such  circumstances, 
because  the  jurisdiction  of  the  res  depends  upon  domieil. 
Therefore,  it  is  not  dependent  upon  the  mode  of  service,  whether 
personal  or  by  construction,  and  applies  even  when  the  court 
which  granted  the  divorce  had  complete  jurisdiction  of  the  per- 
sons of  both  parties  by  their  appearance.^^ 

Another  question  arises  when  the  party  avIio  procured  the 
divorce  was  hona  fide  domiciled  in  the  State  of  the  forum  where 
it  was  granted,  but  the  other  party  was  a  non-resident  and 
served  constructively.  In  such  case  the  court  has  jurisdiction  of 
the  res,  but  has  no  jurisdiction  of  the  defendant,  and  the  ques- 
tion is  whether  it  can  proceed  without  jurisdiction,  and  render 

8.  State  V.  Kennedy,  76  X.  Car.  10.  For  one  doctrine  see  Penne- 
251,  23  Am.  Rep.  083.  gar   v.   State,   87   Tenn.   244.    10   S. 

9.  Brook  V.  Brook,  9  H.  L.  Cas.  W.  305,  2  L.  R.  A.  703  and  note,  10 
193;  Sottomayor  v.  De  Barras,  3  Am.  St.  Rep.  048;  fol'  the  other 
P.  D.  5,  7,  where  the  domiciliary  line  see  Van  Voorhis  v.  Brintnall, 
law  controls.  But  where  the  domi-  86  N.  Y.  18,  40  Am.  Rep.  505,  and 
ciliary  law  does  not  govern,  see  Oova.  v.  Lane,  113  Mass.  458,  18 
Stevenson    v.     Gray,     17     B.    Mon.  Am.  Rep.  509  and  note. 

(Ky.)    193,  and  Com.  v.  Lane,  113  11.  Andrews  v.  Andrews,  188  U. 

Mass.    458,    IS    Am.    Rep.    509    and        S.  14,  23  S.  Ct.  237. 

Dote. 

458 


Cll.    15  INTERSTATE    CONTRACTS,  §§    400,401 

a  decree  of  divorce  ag:ainst  liini  or  her,  as  the  case  may  bo,  which 
the  courts  of  another  State  are  bound,  under  the  full  faith  and 
credit  provision,  to  recognize  as  affecting  the  marital  status  of 
the  non-resident  defendant.  The  Supreme  Court  of  the  United 
States  answers  this  question  in  the  affirmative,^^  and  overrules 
the  JSTew  York  doctrine  that  divorce  proceedings  are  in  personam, 
so  that  a  foreign  divorce  obtained  in  a  State  where  the  plaintiff 
alone  is  domiciled  will  have  no  validity  exterritorially,  unless  the 
defendant  voluntarily  appears  or  is  personally  served  with  pro- 
cess within  the  territorial  jurisdiction  of  the  divorce  court/' 
And  the  New  Jersey  doctrine^*  is  not  affected  by  the  United 
States  Sui)reme  Court  decision;  for  in  New  Jersey  the  non- 
resident defendant  must  have  the  best  notice  possible,  after 
wdiich  the  domiciled  plaintiff  can  have  a  valid  decree  under  the 
Federal  Constitution, 

Where  the  decree  is  rendered  in  a  foreign  country,  the  State 
courts  can  consult  their  own  policy  and  reject  the  decree. 
When,  however,  it  is  a  question  of  the  recognition  of  such  a 
decree  rendered  in  another  State  of  the  Union,  the  court  must 
recognize  the  decree  under  the  Federal  Constitution  requiring 
each  State  to  give  full  faith  and  credit  to  the  public  acts  and 
judicial  proceedings  of  every  other. ^^ 

And  where  one  party  leaves  his  domicil  and  tries  to  acquire 
another  by  fraud,  and  there  obtains  a  divorce,  it  is  void,  and  a 
divorce  obtained  by  the  other  party  at  her  domicil  will  be  valid 
and  be  so  accepted  in  all  the  States  of  the  Union.^® 

§  401.  Married  women — Infants. — The  extent  to  which  a 
married  woman  may  bind  her  separate  personal  property  or 
herself,  is  prima  facie  determined  by  the  hiw  of  the  State  in 

12.  Atherton  v.  Atherton,  181  llo  N.  Car.  587,  20  S.  E.  187,  44 
U.  S.  155,  45  L.  Ed.  794,  21  S.  Ct.        Am.  St.  Rep.  471. 

544.  14.  Doughty  v.   Doughty,   27   N. 

13.  In    re    Kimball,    155    N.    Y.        .1.  Eq.  315. 

62,  49  N.   E.   331.     The  New  York  15.  Art.  4,  sec.  1. 

doctrine  has  been  adopted   in  Cook  16.   Bell   v.   Bell.   181    U.   S.   175, 

V.  Cook,  50  Wis.  195,  14  N.  33,  443,  21  S.  Ct.  551. 

43  Am.  Rep.  700:  TTarris  v.  Harris, 

459 


§401  OPERATION    OF    CONTRACTS.  Ch.    15 

which  the  contract  is  made,  it  being  also  the  place  of  her 
domicil.^  Where  a  note  made  in  one  State  by  a  married  woman 
is  sued  on  in  another,  the  liability  of  her  separate  estate  therefor 
will  be  determined  by  the  laws  of  the  latter.^ 

And  a  legal  contract  made  in  another  State  by  a  married 
woman,  which  she  was  not  at  the  time  capable  of  making  under 
the  law  of  her  domicil,  and  which  she  cannot  lawfully  make  at 
her  domicil,  is  valid  and  can  be  enforced  in  the  State  of  her 
domicil.^ 

But  a  contract  made  at  her  domicil  and  void  cannot  there- 
fore be  enforced.  Thus,  in  insolvency  proceedings,  a  contract 
of  guaranty  dated  and  signed  by  parties  in  Chicago,  and  to  be 
performed  in  Illinois,  which  was  afterwards  signed  by  a  mar- 
ried woman  who  lived  in  Connecticut,  and  then  delivered  in 
Illinois,  is,  as  to  her,  a  Connecticut  contract,  and  invalid  under 
the  laws  of  Connecticut  for  want  of  capacity  to  make  such  a 
contract.*  However,  if  a  married  woman  has  the  general  power 
to  contract,  her  contracts  will  be  as  valid  as  those  of  other  parties 
with  full  capacity.^  But  the  common  law,  which  makes  the  con- 
tract of  a  married  woman  invalid,  must  still  be  accepted  as  the 
general  rule  for  those  States  which  have  not  made  exceptions  by 
statutes.  Hence,  a  State  of  her  domicil  has  the  power  to  pro- 
tect a  married  woman  from  the  result  of  her  contract  made 
while  personally  present  in  such  State,  if  it  choose  so  to  do.® 

If  the  domicil  and  forum  impose  a  total  incapacity  to  con- 
tract on  the  part  of  a  married  woman,  the  law  of  the  domicil 

1.  Dulin  V.  McCaw,  39  W.  Va.  Rep.  473;  Johnson  v.  Gawtry,  11 
721,  20  S.  E.  681.  Mo.   App.   322;    Bank   v.   Williams, 

2.  Read   v.    Brewer    (Miss.),    16       45  Miss.  618. 

South.  Rep.  350;    Frieison  v.  Wil-  4.  First   Nat.    Bank   v.   Mitchell, 

liams,  57  Miss.  451.  •  84  Fed.  Rep.  90,  180  U.  S.  471,  21 

3.  Milliken   v.   Pratt,    125   Mass.        S.  Ct.  418. 

374,  28   Am.  Rep.  241.     See,  also,  5.  Bowles  v.  Field,  78  Fed.  Rep. 

Baldwin  v.  Gray,  16  Martin   (La.),  742;    Milliken  v.   Pratt,    125   Mass. 

192 ;    Saul  v.  Creditors,  17  Martin  374,  28  Am.  Rep.  241 ;  Bell  v.  Pack- 

(La.),  569,  597;  Andrews  v.  Credi-  ard,  69  Me.  105,  31  Am.  Rep.  251. 

tors,   11   La.  Ann.   464,  476;    Com-  6.  First  Nat.   Bank  v.  Mitchell, 

pare   Armstrong    v.    Best,    112    N.  84  Fed.  Rep.  90,  180  U.  S.  471,  21 

Car.  59,   17   S.  E.   14,   34  Am.  St.  S.  Ct.  418. 

460 


Ch.    15  INTERSTATE    CONTRACTS.  §    401 

and  forum  will  be  substituted  for  the  lex  loci  celebrationis, 
upon  the  ground  that  tlie  policy  of  protection  to  the  married 
women  of  the  State  is  too  important  a  policy  to  be  set  aside  by 
a  foreign  law.'  But  where  the  laws  of  the  domicil  and  forum 
only  declares  a  few  of  a  married  woman's  contracts  void,  a  suit 
there  upon  a  contract  made  in  another  State  where  it  is  valid, 
which  contract  is  beyond  her  capacity  under  her  domiciliary  law, 
the  contract  will  still  be  enforced  against  her,  even  at  her  domicil. 
Because  the  enforcement  of  the  protective  policy  is  of  less  im- 
portance to  the  community  than  the  general  policy  of  recogniz- 
ing the  binding  effect  of  contracts  and  the  sovereignty  of  another 
State  over  matters  within  its  jurisdiction.^  So  the  rule  is  dif- 
ferent where  the  married  woman's  capacity  is  total  or  partial. 
So  if  her  contract  is  only  voidable  in  her  domiciliary  courts,  the 
lex  celebrationis  wall  be  enforced  there. 

Where  the  common  law  prevails  in  full  force,  making  a  married 
woman  totally  incapable  of  entering  into  a  contract,  her  inca- 
pacity must  be  considered  as  so  fixed  by  the  policy  of  the  State 
for  the  protection  of  its  own  citizens,  that  it  will  not  yield  to  the 
law  of  another  State  in  which  she  might  contract.^ 

If  the  policy  of  protection  to  its  citizens,  adopted  by  the  law 
of  the  domicil  and  forum,  is  not  so  pronounced  as  to  make  an 
infant's  contract  void,  but  only  voidable,  the  liability  of  an  in- 
fant upon  his  contracts  is  to  be  determined,  even  in  the  courts 
of  his  domicil,  by  the  lex  celebrationis  of  his  contract,  and  not 
by  the  law  of  the  domicil  and  forum.^** 

Contracts  of  suretyship  are  governed  by  the  law  where  exe- 
cuted.^^     But  it  is  not  always  clear  where  the  execution  was. 

7.  First  National  Bank  v.  ard,  69  Me.  105,  31  Am.  Rep.  251. 
Shaw,  100  Tenn.  237,  70  S.  W.  867,  9.  First  Nat.  Bank  v.  Shaw,  109 
59  L.  R.  A.  498;  Case  v.  Dodge,  18  Tenn.  237,  70  S.  W.  807,  59  L.  R. 
R.  I.  661,  29  A.  785;  Baum  v.  A.  498;  Minor's  Conf.  L.,  p.  147. 
Birchall,  150  Pa.  St.  164,  24  A.  620,  10.  Thompson  v.  Ketcham,  8 
SO  Am.  St.  Rep.  797;  Hanover  Nat.  Johns.  (N.  Y.)  189;  Wilder's  Sue- 
Bank  V.  Howell,  118  N.  Car.  271,  cession,  22  La.  Ann.  219,  2  Am, 
23  S.  E.  1005;  Bowles  v.  Fields,  78  Rep.  721;  Male  v.  Roberts,  3  Esp. 
Fed.  Rep.  742.  163. 

8.  Milliken   v.    Pratt,    125   Mass.  11.  Pingrey's      Suretyship      and 

374,  28  Am.  Rep.  241;  Bell  v.  Pack-  Guar.  93. 

461 


401 


OPEEATIOX    OF    CONTKACTS. 


Ch.    15 


Thus,  a  married  woman's  contract  as  surety  on  a  note  is  gov- 
erned bj  the  law  of  tlie  place  of  signing  and  delivery  to  payee, 
though  the  note  is  payable  in  another  State  and,  as  against  the 
maker  has  no  valid  inception  until  its  negotiation  in  the  latter 
State,  provided  the  surety  had  no  knowledge  of  its  negotiation 
there,  or  intention  that  her  contract  shall  be  governed  by  the 
laws  of  that  State.-^^  The  lex  loci  conti^actus  will  also  govern 
her  contract,  if  she  is  not  under  total  disability  to  contract  at 
her  domicil.  Thus,  a  married  woman  became  a  guarantor  for 
her  husband  in  Maine  where  her  contract  was  valid ;  she  was 
sued  on  this  contract  in  Massachusetts,  her  domicil,  where  she 
could  not  make  such  a  contract,  and  the  contract  was  enforced." 
She  was  not  totally  disabled  to  contract  in  Massachusetts.  If 
she  had  been  totally  unable  to  contract  at  her  domicil,  the  con- 
tract would  not  have  been  enforced  against  her."  So  where 
there  is  a  written  promise  of  a  married  Avoman,  domiciled  in 
!New  Jersey,  to  pay  a  sum  of  money  to  the  order  of  her  husband, 
signed  by  her  at  her  domicil,  and  carried  by  him  wdth  her 
acquiescence,  to  ^ew  York,  and  there  endorsed,  and  there  de- 
livered in  exchange  for  other  notes  in  the  State  of  New  York, 
the  capacity  of  the  wife  to  bind  herself  by  a  contract  of  surety- 
ship is  to  be  determined  by  the  law  of  New  York.  Such  a 
contract  is  valid  in  ]S^ew  York  and  therefore  can  be  enforced 
in  any  other  State.^^  Some  other  courts  seem  to  decide  con- 
trary to  this  doctrine  as  to  the  situs  of  the  contract,  and  hold 
that  it  is  where  the  married  woman  signed  the  instrument.^® 
Thus,  w^here  a  contract  of  guaranty  is  dated  and  signed  by 


12.  Union  Nat.  Bank  v.  Chap- 
man, 169  N.  Y.  538,  62  N.  E.  672, 
57  L.  R.  A.  513  and  note,  88  Am. 
St.  Rep.  664;  First  Nat.  Bank  v. 
Mitchell,  180  U.  S.  471,  21  S.  Ct. 
418. 

13.  Milliken  v.  Pratt,  125  Mass. 
374,  28  Am.  Rep.  241. 

14.  Armstrong  v.  Best,  112  N. 
Car.  59,  17  S.  E.  14,  25  L.  R.  A. 
188. 


15.  Thompson  v.  Taylor,  66  N. 
J.  L.  253,  49  A.  544,  54  L.  R.  A. 
585,  88  Am.  St.  Rep.  485.  See,  also, 
Milliken  v.  Pratt,  125  Mass.  375, 
28  Am.  Rep.  241;  Bell  v.  Packard, 
69  Me.  105,  31  Am.  Rep.  251; 
Bowles  V.  Field,  78  Fed.  Rep.  242; 
Skudder  v.  Bank,  91  U.  S.  406. 

16.  Freeman's  Appeal,  68  Conn. 
533,  37  A.  420,  37  L.  R.  A.  452,  57 
Am.  St.  Rep.  112. 


462 


Ch.     15  I^'TEKSTATE    CONTRACTS.  §    401 

others  at  Chicago,  and  to  be  performed  in  Illinois,  and  after- 
wards is  sent  to  a  married  woman  in  Connecticut,  who  signed 
it  in  that  State,  and  then  gave  it  to  her  hnsband  who  delivered  it 
in  Illinois,  the  situs  of  the  contract  as  to  the  wife  was  in  Con- 
necticut, under  whose  laws  she  was  not  capable  of  making  it, 
and  therefore  unenforceable  against  her  in  any  place."  This 
doctrine  was  not  accepted  on  appeal,  and  a  majority  of  the 
appellate  court  said  that  the  wife  became  liable  in  Illinois, 
although  she  could  not  be  held  according  to  law  of  her  domicil 
if  the  contract  had  been  executed  there,  that  is,  in  Connecticut ; 
tliat  the  question  involved  was  one  of  general  jurisdiction,  in 
which  case  it  was  the  duty  of  a  Federal  court  to  act  inde- 
pendently of  a  State  court  decision. ^^  Then  the  case  was  taken 
to  the  United  States  Supreme  Court,  which  reversed  the  United 
States  Circuit  Court  of  Appeals  decision  and  affirmed  the  deci- 
sion of  the  United  States  Circuit  Court. ^^  The  court  held 
that  the  law  of  the  court  of  Connecticut  should  be  followed. 
The  question  had  been  passed  upon  by  the  court  of  last  resort 
of  Connecticut,  which  held  that  the  wife  was  not  capaciated  to 
make  the  contract ;  that  it  is  not  the  place  of  delivery  of  a  con- 
tract that  always  controls,  but  the  power  of  delivery.  There- 
fore, the  wife  having  no  legal  capacity  to  deliver  the  contract 
to  her  husband  or  to  any  one,  it  was  void.^"  The  United  States 
Supreme  Court  held  that  the  decision  of  the  State  court  con- 
trolled and,  therefore,  the  wife  was  not  liable.  As  the  bank 
of  Illinois  presented  its  claim  in  Connecticut,  and  as  it  was 
passed  upon  by  the  Connecticut  court  of  last  resort,  the  bank 
was  bound  by  the  State  decision  thoug-h  it  had  taken  the  case 
into  the  Federal  courts,  on  the  ground  that  a  right,  question 
or  fact  distinctly  put  in  issue  and  directly  determined  by  a 
court  of  competent,  jurisdiction,  as  a  ground  of  recovery,  can- 
not be  disputed  in  a  subsequent  suit  between  the  same  parties 

17.  First  Nat.  Bank  v.  Mitchell,  20.  Fieeman's  Appeal,   G8   Conn. 
84  Fed.  Rep.  90.                                           533,  37  A.  420.  37  L.  R.  A.  452,  57 

18.  9-2  Fed.  Rep.  5G.5.  Am.  St.  Rep.  112. 

19.  Mitchell  v.   Bank,   180  U.  S. 
471.  21  S.  Ct.  418. 

463 


§§    401,  402  OPERATION    OF    CONTEACTS.  Ch.    15 

or  their  privies ;  and  even  if  the  suit  is  for  different  cause  of 
action,  the  right,  question  or  fact  once  so  determined  must,  as 
between  the  same  parties  or  their  privies,  be  taken  as  con- 
clusively established,  so  long  as  the  judgment  in  the  first  suit 
remains  unmodified.^^  The  Connecticut  doctrine  is  against 
the  weight  of  authority.  The  Connecticut  doctrine  is  based  on 
the  assertion  that  the  wife  had  no  power  to  deliver  the  contract, 
so  there  was  no  legal  delivery.  In  JSTew  York  it  is  held  that 
the  contract  of  a  married  woman  as  surety  on  a  note,  is  gov- 
erned by  the  law  of  the  place  where  her  signature  is  affixed  and 
the  instrument  delivered  to  the  payee,  although  the  note  is  pay- 
able in  another  State  and  as  against  the  makers  has  no  valid 
inception  imtil  its  negotiation  in  the  latter  State,  if  the  surety 
or  married  woman  has  no  knowledge  that  it  is  to  be  negotiated 
there  or  intention  that  her  contract  shall  be  governed  by  the 
laws  of  that  State.^^ 

§  402.  Chattel  mortgage  lien  follows  the  property. — It  is 

the  general  rule  that  when  the  mortgagor  removes  to  another 
State  and  takes  the  mortgaged  property  with  him,  the  mortgage 
lien  still  attaches  to  the  property,  if  the  mortgage  was  duly 
executed  in  the  former  State.^ 

The  general  rule  of  comity  as  to  this  mortgage  lien  is  not 
recognized  in  some  States.  In  Louisiana,  chattel  mortgages  are 
unknown.  So  the  court  is  not  bound  by  the  comity  of  nations 
to  enforce  a  contract  which,  if  made  in  this  State,  could  not 

21.  Southern  Pac.  R.  R.  Co.  v.  Mo.  255,  21  S.  W.  511,  19  L.  R.  A. 
United  States,  168  U.  S.  1,  18  S.  Ct.  463,  35  Am.  St.  Rep.  754 ;  Bank 
18.  V.  Metcalf,  40  Mo.  App.  501;  Hin- 

22.  Union  Nat.  Bank  v.  Chap-  ney  v.  Baldwin,  16  111.  108,  61  Am. 
man,  169  N.  Y.  538,  62  N.  E.  672,  Dec.  62;  Smith  v.  Whitaker,  23  III. 
57  L.  R.  A.  513  and  note,  88  Am.  St.  369;  Roundtree  v.  Baker,  52  111. 
Rep.  614.  See  Mutual  Ins.  Co.  v.  241,  4  Am.  Rep.  597;  Mumford  v. 
Cohen,  179  U.  S.  262,  21  S.  Ct.  106;  Canty,  50  111.  370,  99  Am.  Dec. 
Smith  V.  Ingram,  130  N.  Car.  100,  525 ;  Wolf  v.  Shannon,  50  111.  App. 
40  S.  E.  984,  61  L.  R.  A.  878,  132  396;  Clough  v.  Kyne,  40  111.  App. 
N.  Car.  959,  44  S.  E.  643,  95  Am.  234 ;  Craig  v.  Williams,  90  Va.  500, 
St.  Rep.  680.  18  S.  E.  899,  44  Am.  St.  Rep.  934; 

1.  National  Bank  v.  Morris,  114        Hubbard  v.   Andrews,   70   Ga.   177; 

464 


Ch.    15  INTERSTATE    CONTRACTS.  §    402 

defeat  the  rights  acquired  bv  attachment  laws.  This  lien  is 
not  recognized  in  Louisiana.^ 

In  Pennsylvania  chattel  mortgages  are  not  in  general  use, 
and  a  chattel  mortgage  made  in  another  State  and  valid  there, 
may  be  enforced  in  Pennsylvania  as  between  the  parties,  yet 
it  cannot  be  enforced  as  against  a  creditor  or  purchaser  who  has 
acquired  rights  in  the  property  after  it  has  been  brought  into 
the  State.  ^ 

In  Michigan  and  Tennessee  chattel  mortgages  are  recognized 
and  executed  as  in  other  States,  but  the  rule  adopted  is  in  con- 
flict with  that  accepted  in  other  States.  So  if  mortgaged  prop- 
erty is  carried  into  Michigan  or  Tennessee  the  legal  execution 
of  the  mortgage  in  another  State  is  no  notice  to  purchasers  or 
creditors  of  that  State.*  In  Tennessee  actual  notice  of  such 
mortgage  will  protect  the  mortgage  in  the  other  State. 

So  if  the  chattels  are  in  another  State  and  the  mortgage  is 
void  there,  but  valid  at  the  lex  loci  contractus,  the  lex  fori  ci 
situs  will  usually  govern  upon  the  ground  that  the  enforcement 
according  to  the  lex  loci  contractus  would  contravene  the  policy 
of  the  forum  or  work  injury  to  its  citizens.'' 

Bank  v.  Lee,  13  Pet.  (U.  S.)  107;  Chat.  Moit.  410.  See,  also,  Ballard 
Beale  v.  Williamson,  14  Ala.  55;  v.  Winter,  39  Conn.  179;  Lang- 
Jones  V.  Taylor,  30  Vt.  42;  Wilson  worthy  v.  Little,  12  Cush.  (Mass.) 
V.  Carson,  12  Md.  54;  Barker  v.  Ill;  Barrows  v.  Turner,  50  Me. 
Stacy,  25  Miss.  477;  Smith  v.  Mc-  127;  Iron  Works  v.  Warner,  76 
Lean,  24  Iowa,  322;  OfTutt  v.  Flagg,  Ind.  512,  40  Am.  Rep.  258. 
10  N.  H.  46 ;  Hornthal  v.  Burwcll,  2.  Delop  v.  Windsor,  26  La.  Ann. 
109  N.  Car.  10,  13  S.  E.  721,  13  185;  Hughes  v.  Klingender,  14  La. 
L.  R.  A.  740  and  note,  26  Am.  St.  Ann.  845. 

Rep.    556;    Handley   v.   Harris,   48  3.  McCabe  v.   Blymyre,  9   Phila. 

Kans.  606,  29  P.   115,  30  Am.  St.  (Pa.)  615;  Jeter  v.  Fellows,  32  Pa. 

Rep.  322;  Feurt  v.  Rowell,  62  Mo.  St.  465. 

524;  Keenan  v.  Stimpson,  32  Minn.  4.  Boydson  v.  Goodrich,  49  Mich. 

377,  20  N.  364;  Kanaga  v.  Taylor,  65,     12    X.    913;     Montgomery    v. 

7  Ohio  St.  134,  70  Am.  Dec.  62  and  Wright,    8    Mich.     143;     Snider    v. 

note;    Parr  v.   Brady,   37   N.  J.  L.  Yates    (Tenn.),    64    L.    R.    A.    353. 

201;  Cool  V.  Roche,  20  Neb.  5.50,  31  See,  also,  Corbett  v.  Littlefield,  84 

N.    W.    367;    Ryan    v.    Clanton,    3  Mich.  30,  47  N.  W.  581,  11  L.  R.  A. 

Strob.    (S.  Car.)    413;   Ferguson  v.  95.  22  Am.  St.  Rep.  681. 

Clifford,    37    N.    H.    87 ;    Norris   v.  5.  Green  v.  Van  Buskirk,  5  Wall. 

Sowles,    57    Vt.    360;    Pingrey    on  (U.  S.)   307;  Chillingworth  v.  Tin- 

465 


§§  402,  403      OPEUATION  OF  CONTRACTS.  Cll.  15 

In  some  States  a  chattel  mortgage  gives  a  mere  lien,  and 
does  not  convey  the  title  with  a  defeasance.  In  these  States 
the  lien  given  bj  the  lex  loci  contractus,  though  valid  as  be- 
tween the  parties,  lias  no  priority  over  domestic  creditors  of  the 
mortgagor,  recognized  by  the  law  of  the  last  situs  of  the  chat- 
tels and  of  the  forum.^ 

In  cases  of  the  sale  of  chattels  with  a  reservation  of  title  in 
the  vendor  until  the  price  is  paid,  the  rule  is  that  the  law  of  the 
place  where  the  subsequent  dealings  occur  will  govern.^ 

§  403.  Conveyance  of  real  estate. — The  law  of  the  sover- 
eignty in  which  the  realty  is  situated  governs  as  to  the  transfer 
of  such  property,  whether  conveyed  absolutely  or  by  mortgage.^ 
And  so  if  a  mortgage  is  executed  in  one  State  where  it  is  in- 
valid, if  it  is  valid  in  the  State  where  the  land  lies,  it  is  suffi- 
cient and  will  be  enforced  in  the  latter.^  But  where  the  con- 
veyance of  title  is  not  involved  the  note  is  governed  by  the  law 
of  the  place  where  payable.  Thus,  a  note  payable  in  Missouri 
is  governed  by  the  Missouri  statute  allowing  four  per  cent, 
damages  upon  protested  notes,  although  secured  by  a  mort- 
gage of  Illinois  land ;  and  this  notwithstanding  the  statute  of 
Illinois  provides  that  when  any  written  contract  wherever  pay- 
able shall  be  secured  by  mortgage  on  land  in  this  State,  it  may 
bear  any  rate  of  interest  allowed  to  be  taken  in  this  State.^ 

ware  Co.,  66  Conn.  306,  33  A.  1009;  1.  Swank  v.   Hufnagle,   111   Ind. 

Smith    V.    Smith,    19    Gratt.    (Va.)  453,  12  N.  E.  303;  Otis  v.  Gregory, 

545.  Ill  Ind.  504,  13  N.  E.  39;   Brown 

6.  Cronan  v.  Fox,  50  N.  J.  L.  v.  Bank,  44  Ohio  St.  269,  6  N.  E. 
417,  14  A.  119.  See  Walworth  v.  648;  Gates  v.  Gaither,  46  La.  Ann. 
Harris,  129  U.  S.  355,  9  S.  Ct.  286,  15  So.  50;  Goddard  v.  Sawyer, 
340.  9  Allen   (Mass.),  78;  United  States 

7.  Harvey  v.  Locomotive  Works,  v.  Crosby,  7  Cranch  (U.  S.),  115; 
93  U.  S.  664;  Marvin  Safe  Co.  v.  United  States  v.  Fox,  94  U.  S.  320; 
Norton,  48  N.  J.  L.  412,  7  A.  418,  Commercial  Banlc  v.  Jackson,  7 
57  Am.  Rep.  566  and  note.  See  Dak.  135,  63  N.  W.  548. 
"Conflict  of  Laws  as  to  Sales  of  2.  Post  v.  Bank,  138  111.  559,  28 
Live  Stock  in  One  State,  Held  Un-  N.  E.  978. 

der  Chattel  Mortgage  in  Another."  3.  Guiguon  v.  Trust  Co.,  156  111. 

—54  Cent.  L.  J.  443.  135,  40  X.  E.  556,  47  Am.  St.  RepL 

186. 

466 


Cll.    15  liNTJiltSTATi:    C(4NTli.VCTS.  §    403 

In  the  absence  of  evidence  explanatory  of  the  transaction  the 
presumption  is  that  the  payment  of  the  proceeds  of  a  loan  and 
tlie  delivery  of  the  note  and  mortgage  are  contemporaneous 
acts,  and  that  the  note  is  not  a  foreign  contract  although  it 
appears  from  its  face  to  have  been  executed  in  one  State 
some  days  previous  to  the  execution  of  the  mortgage  in  another 
State." 

The  rights  and  obligations  under  acts  passed  in  one  State  to 
be  exercised  in  another,  respecting  transfer  of  real  estate  in  the 
latter,  are  regulated,  in  point  of  form,  substance,  and  validity, 
by  the  laws  of  the  State  in  which  such  acts  are  to  have  effect.^ 
And  so  the  law  of  the  place  where  the  land  is  situated,  will 
govern  the  right  of  the  parties  in  the  enforcement  of  a  cove- 
nant, in  so  far  as  it  relates  to  the  question  of  the  covenant  run- 
ning with  the  land.^  Likewise  the  construction  of  a  mortgage 
foreclosed  in  JSTebraska  on  Iowa  lands  will  be  in  accordance  with 
the  law  of  Iowa,  and  so  the  proceeds  arising  from  the  sale  of 
such  land  will  be  applied  first  to  the  payment  of  the  notes  in 
order  of  time  in  which  they  fall  due.^ 

The  general  rule  is  that  the  lex  situs  must  control  so  far  as 
the  covenants  of  the  title  running  with  the  land  are  concerned.^ 
In  Indiana  the  lex  celebrationis  of  the  ccvenant  is  also  lex  solu- 
tionis, and  must  govern.^ 

The  lex  situs  will  govern  the  obligation  of  a  contract  to  con- 
vey, the  contract  being  made  in  another  State/*'  So  a 
mechanic's  lien  is  governed  by  the  lex  situs  of  the  land  on 
which  the  lien  rests.^^ 

4.  Stark  v.  Olsen,  44  Neb.  646,  Succession  of  Cassidy,  40  La.  Ann. 
63  N.  W.  37.  827,  5  So.  292. 

5.  Succession  of  Larendon,  39  La.  9.  Worley  v.  Hineman,  6  Ind. 
Ann.  952,  3  So.  219;  Succession  of  App.  240,  33  N.  E.  260;  Jackson  v. 
Cassidy,  40  La.  Ann.  827,  5  So.  292.  Green,  112  Ind.  341,  14  N.  E.  89. 

6.  Riley  v.  Burroughs,  41  Neb.  10.  Rush  v.  Lander,  107  La.  Ann. 
296,  59  N.  W.  929.  549,   32   So.   95,   57   L.   R.   A.   353; 

7.  Whipple  V.  Fowler,  41  Neb.  Garden  City  Sand  Co.  v.  Miller,  157 
675,  60  N.  W.  65.  111.  225,  41  N.  E.  753;   Carnegie  v. 

8.  Tillotson  v.   Prichard,   60   Vt.  Morrison,  2  Met.    (Mass.)    381. 

94,  14  A.  302,  6  Am.  St.  Rep.  95;  11.  Campbell  v.  Coon,  149  N.  Y. 

467 


§§    403,  404  OPERATION    OF    CONTRACTS.  Cll.    15 

If  the  lex  situs  of  the  land  requires  a  sale  to  be  in  writing, 
making  the  contract  void  if  not  in  writing,  the  lex  situs  must 
govern.^^  But  there  is  no  reason  why  the  personal  contract 
should  not  be  enforced,  according  to  the  lex  celehrationis,  and 
specific  performance  may  be  decreed  in  a  third  State,  and  prob- 
ably at  the  situs  of  the  property ;"  or  the  promisee  waiving  all 
right  to  the  land  may  recover  damages.  In  such  case,  the  lex 
celehrationis  should  govern,  whether  the  action  be  brought  in 
"the  courts  of  the  situs  of  the  locus  celehrationis,  of  a  third 
State."  Where  a  married  woman  must  be  examined  separate 
and  apart  from  her  husband,  the  lex  situs  must  govern,  as  to 
the  validity  of  the  deed.^^ 

§  404.  Insurance  contracts. — Contracts  for  the  insurance  of 
property  against  loss  by  fire  is  a  mere  contract  for  indemnity 
in  case  of  loss,  and  in  no  way  attaches  to  or  affects  title  to  such 
property.^  And  an  insurance  company  of  a  State,  within  the 
State,  may  make  a  valid  contract  of  insurance  upon  property 
of  another  party  of  the  same  State,  although  such  property  is 
situated  in  another  State  in  which  the  insurance  company  has 
no  authority  to  do  business.^ 

And  so  when  an  insurance  company  takes  a  risk  in  another 
State,  it  voluntarily  submits  itself  to  the  laws  of  that  State  as 
to  the  service  of  process  upon  it;^   and  it  is  not  necessary  that 

556,  44  N.  E.  300,  38  L.  R.  A.  410  (Mass.)  381;  Minor's  Conf.  L.  416, 

and  note;  United  States  Invest.  Co.  417;    Story's    Conf.    L.,   sec.    372d; 

V.  Windmill  Co.,  54  Kan.  144,  37  P.  Wharton's  Conf.  L.,  sec.  276a. 

982.  15.  Smith  v.  Ingram,  130  N.  Car. 

12.  Poison  V.  Stewart,  167  Mass.  100,  40  S.  E.  984,  61  L.  R.  A.  878, 
211,  45  N.  E.  737,  36  L.  R.  A.  771,  132  N.  Car.  959,  44  S.  E.  643,  95 
57  Am.  St.  Rep.  552.  Am.  St.  Rep.  680. 

13.  Poison  V.  Stewart,  167  Mass.  1.  Darrell  v.  Tibbitts,  5  Q.B.  Div. 
211,  45  N.  E.  737,  36  L.  R.  A.  771,  560;  Stanhilber  v.  Ins.  Co.,  76  Wis. 
57  Am.  St.  Rep.  552.  291,  45  N.  W.  221. 

14.  Wolf  V.  Burke,  18  Colo.  264,  2.  Seamons  v.  Knapp  Co.,  89 
32  P.  427,  19  L.  R.  A.  792  and  note;  Wis.  171,  61  N.  W.  757,  27  L.  R.  A. 
Miller  v.   Wilson,    146   111.   523,   34  362,  46  Am.  St.  Rep.  825. 

N.  E.   1111,  37   Am.   St.   Rep.   186;  3.  Fireman's  Irs.  Co.  v.  Thomp- 

Carnegie     v.      Morrison,     2     Met.       son,  155  111.  204,  40  N.  E.  488,  46 

468 


Cll.    15  INTERSTATE    CONTEACTS.  §    404 

the  right  of  service  of  process  upon  foreign  insurance  companies 
doing  business  within  a  State  should  be  dependent  upon  their 
first  taking  out  a  license  to  do  business.* 

If  a  place  is  designated  for  the  payment  of  insurance  money 
that  is  the  locus  solutionis.  If  tlie  policy  is  in  general  terms, 
with  no  such  place  designated,  then  the  locus  solutionis,  as  is 
generally  held,  will  be  presumed  to  be  the  same  as  the  locus 
celebrationis.^ 

Other  cases  hold  that  in  case  of  insurance  on  buildings,  the 
situs  of  the  land  is  the  locus  solutionis.^  Other  cases  hold  that 
where  the  insurance  is  only  on  personal  property  or  on  life, 
the  doniicil  of  the  insurer  is  the  locus  solutionis.''  If  the  policy 
is  binding  as  soon  as  issued  or  on  approval  of  the  company, 
the  celebrationis  is  where  the  policy  is  issued  or  approved  by 
the  company.* 

An  insurance  policy,  like  other  contracts,  is  completed  when 
delivered,  and  the  place  of  delivery  is  the  locus  celebrationis.'* 
However,  if  the  insured  is  to  be  notified  by  mail  or  otherwise 
that  the  risk  is  accepted,  the  place  of  the  delivery  of  the  policy 
is  immaterial.^*'     If  the  policy  is  to  be  mailed  to  the  insured, 

Am.    St.    Rep.    335;    State    v.    In-  Ins.  Co.,  8  Wash.  427,  36  P.  267,  40 

demnity  Asso.,  62  Wis.  174,  22  N.  Am.  St.  Rep.  917. 

W.  135.  8.  Voorhies  v.   Society,   91   Mich. 

4.  State  V.  Mut.  Accident  Asso.,  469,  51  N.  W.  1109;  State,  etc.  Ins. 
67  Wis.  624,  31  N,  W.  229;  Gibbs  Co.  v.  Brinkley,  61  Ark.  1,  31  S.  E. 
V.  Ins.  Co.,  63  N.  Y.  114.  L^O  Am.  157,  54  Am.  St.  Rep.  191;  Equita- 
Rep.  513;  Pope  v.  Terre  Haute,  etc.  h]^,  etc.  Society  v.  Redding,  83  Fed. 
Co.,  87  N.  Y.  137;  Osborne  v.  Ins.  Rep.  85,  27  C.  C.  A.  404,  48  U.  S. 
Co.,  51  N.  Y.  278;  McNichol  v.  U.  App.  565. 

S.  etc.  Asso.,  74  Mo.  457;  Lhoneux  9.  Equitable,    etc.    Soc.   v.    Clem- 

V.   Corporation,   L.   R.    33   Ch.   Div.  ents,  140  U.  S.  225,  US.  Ct.  822; 

446;     Griesemer    v.     Ins.     Co.,     10  Mutual   L.   Ins.   Co.   v.   Cohen,    179 

Wash.  202,  38  P.  1031.'  U.  S.  262,  15  S.  Ct.   106;   Perry  v. 

5.  Seamans  v.  Knapp  Co.,  89  Ins.  Co.,  67  N.  H.  291,  33  A.  731, 
Wis.  171,  61  N.  W.  757,  46  Am.  St.  68  Am.  St.  Rep.  668;  Hicks  v.  Ins. 
Rep.  825,  27  L.  R.  A.  362.  Co.,  60  Fed.  Rep.  690,  9  C.  C.  A. 

6.  Gibson  v.  Ins.  Co.,  77  Fed.  215;  In  re  Breitung,  78  Wis.  33,  46 
Rep.  561.  N.  W.  891,  47  N.  W.  17. 

7.  Knights  Templars  Asso.  v.  10.  Perry  v.  Ins.  Co.,  67  N.  H. 
Greene,  79  Fed.  Rep.  461;  Wood  v.  291,   33   A.   731,   68   Am.    St,   Rep. 


668. 


469 


§    404  OPERATION    OF    CONTEACTS.  CTl.    15 

then  delivery  is  at  the  place  of  mailing;  if  mailed  to  a  third 
person  to  be  delivered,  then  the  delivery  takes  place  in  the  State 
where  delivered.^^  If  the  policy  only  becomes  binding  on  pay- 
ment of  first  premium,  then  the  place  v^^here  paid  is  the  locus 
celebrationis}^  Or  if  the  policy  is  to  be  countersigned  by  an 
agent,  or  something  else  is  to  be  done,  the  locus  celebrationis  is 
where  the  act  is  performed,^^ 

A  stipulation  that  the  non-payment  of  premiums  shall  avoid 
the  contract,  is  governed  by  the  lex  celebrationis  of  the  con- 
tract," though  it  has  been  held  that  the  lex  celebrationis  is 
the  place  whose  law  the  parties  had  in  mind.^^  If  the  policy 
provides  that  the  suicide  of  the  insured  shall  avoid  the  policy 
it  is  void  in  another  State,  if  void  by  the  lex  celebrationis}^  If 
the  contract  is  made  in  one  State,  the  stipulation  to  submit  the 
parties  to  another  law  is  of  no  validity,  because  the  law  of  the 
situs  governs  the  validity  of  the  contract.  If  the  parties  desire 
a  different  law  to  govern  their  contract  they  must  go  into 
another  jurisdiction."  And  whether  a  party  has  an  insurable 
interest  in  another's  life  is  governed  by  the  lex  celebrationis. 
When  there  is  no  positive  law  to  the  contrary,  the  designating 
a  beneficiary  in  a  life  policy  is  to  be  governed  by  the  lex  domi- 
cillii  of  the  assured.  ^^ 

The  validity  of  premium  notes  depend  upon  the  validity  of 

11.  Equitable,  etc.  Soc.  v.  Clem-  15.  Finney  v.  Ins.  Co.,  67  Fed. 
ents,  140  U.  S.  226,  11  S.  Ct.  822.  Rep.  493. 

12.  Equitable,  etc.  Soc.  v.  Clem-  16.  Ejiights  Templar  Indem.  Co. 
ents,  140  U.  S.  226,  11  S.  Ct.  822;  v.  Berry,  50  Fed.  Rep.  511;  Na- 
Mutual  L.  Ins.  Co.  v.  Cohn,  179  U.  tional  Union  v.  Marlow,  74  Fed. 
S.   262,  21   S.   Ct.   106;   Mandon  v.  Rep.  775. 

Ins.   Co.,   85   Iowa,   584,   52   N.   W.  17.  Perry  v.  Ins.  Co.,  67  N.  H. 

509,  39  Am.  St.  Rep.  316;   Ford  v.  291,    33   A.    737,    68   Am.    St.    Rep. 

Ins.    Co.,    6    Bush.    (Ky.),    133,    99  668;     Penn    Mut.    L.    Ins.    Co.    v. 

Am.  Dec.  663  and  note.  Trust  Co.,  72  Fed.  Rep.  413,  38  L. 

13.  Gibson   v.   Ins.   Co.,   77    Fed.  R.  A.  33  and  note. 

Rep.   561;    Heebner  v.   Ins.   Co.,   10  18.  Masonic  Asso.  v.  Jones,   154 

Gray    (Mass.),    131,    69    Am.    Dec.  Pa.    St.    107,    26   A.    255;    Knights 

308.  Templars  Asso.  v.  Greene,  79  Fed. 

14.  Wall  V.  Equitable  Soc,  32  Rep.  461;  Mullen  v.  Reed,  64  Conn. 
Fed.   Rep.   273;    Hicks   v.   Ins.   Co.,  340,  29  A.  478,  25  L.  R.  A.  694. 

60  Fed.  Rep.  690,  9  C.  C.  A.  215. 

470 


Ch.    15  INTERSTATE    CONTEACTS.  §§    404,405 

the  contract  of  iiisnraiu'c.  So  if  the  contract  is  pbohibited  in 
one  State  where  made,  it  will  not  be  enforced  in  another  State, 
and  the  notes  will  be  invalid.^'  Bnt  if  valid  where  raado,  and 
in  direct  violation  of  the  laws  of  the  State  where  the  property 
ihas  its  situs  and  where  the  insured  resides,  it  will  not  be  en- 
forced in  the  latter  State.^" 

However,  this  doctrine  does  not  apply  to  a  foreigii  policy, 
which,  by  statute,  must  have  a  correct  copy  thereof  attached  to 
it;  such  provision  has  no  bearing^  on  policies  issued  by  for- 
eign companies  in  other  States,  although  they  were  on  lives  of 
persons  domiciled  in  the  State  where  the  statute  was  enacted.^^ 

§  405.  Assignment  of  policy  of  insurance. — Assignment  of 
a  life  insurance  policy  is  governed  by  the  law  of  the  place  where 
the  assignment  is  made,  and  not  by  the  law  of  the  place  where 
the  policy  is  issued  or  insurance  payable.^  In  general  an 
assignment  of  a  policy  of  insurance  is  not  governed  by  the 
rules  of  law  different  from  those  in  cases  of  assignment  of 
choses  in  actions.  If  the  assignment  is  void  when  made,  though 
valid  where  the  policy  was  issued,  it  will  be  void  in  the  latter 
place  also.*  Thus,  when  a  Massachusetts  corporation  has  issued 
an  endowment  policy  insuring  a  husband's  life  for  a  period  of 
time,  payable  to  the  wife,  if  living,  in  case  of  husband's  death 
during  the  endowment  period,  which  was  assigned  by  the  hus- 
band and  wife,  who  reside  in  ISTew  York,  the  laws  of  the  latter 
State  govern  the  validity  of  the  assignment.^ 

19.  Ford    V.    Ins.    Co.,    6    Busn  ney,  13  Ind.  App.  67,  41  N.  E.  78; 
(Ky.),   133,  99  Am.  Dec.  663  and  Lee  v.  Abdy,  17  Q.  B.  Div.  300. 
note;  Blackwell  v.  Webster,  29  Fed.  2.  I^e    v.    Abdy,    17    Q.    B.    Div. 
Rep.  614.  309;   Prentice  v.  Steele,  4  Montreal 

20.  Swing  V.  Munson,  191  Pa.  L.  R.  319;  Union  Central  Life  Ins. 
St.  582,  43  A.  342,  59  L.  R.  A.  223,  Co.  v.  Woods,  11  Ind.  App.  335,  37 
71  Am.  St.  Rep.  772.  N.  P].  180,  39  N.  E.  205. 

21.  Johnson  v.  Ins.  Co.,  180  3.  Miller  v.  Campbell,  140  N.  Y. 
Mass.  407,  62  N.  E.  733,  63  L.  R.  A.  457,  35  N.  E.  051;  In  re  Breitung, 
833.  78  Wis.  33,  46  N.  W.  891,  47  N.  W. 

1.  Miller  v.  Campbell,  140  N.  Y.        17. 
457,  35  N.  E.  651;  Criswell  v.  Wl.it- 

471 


§    400  OPEEATION    OF    CONTRACTS.  CTl.    15 

§  406.  Assignment  of  property. — The  general  rule  of  law 
is  that  if  a  voluntary  conveyance  of  personal  property  is  valid  by 
the  law  of  the  State  where  made,  it  passes  the  title  wherever 
the  property  may  be  situated,  and  this  rule  is  applicable  to  cases 
of  voluntary  assignment  for  the  benefit  of  creditors.^ 

When  a  transfer  of  property  is  valid  by  the  law  where  the 
vendor  resides  and  the  property  is  situated,  though  it  would  not 
be  if  executed  in  another  State,  the  title  is  not  displaced  by 
subsequent  removal  of  the  property  to  the  latter  State,  even  as 
to  creditors  residing  in  the  latter  State  seeking  a  remedy 
against  it.' 

The  lex  loci  contractus  governs  the  transfer,  though  the  prop- 
erty be  situated  in  another  State,  except  when  the  enforcement 
of  lex  loci  contractus  would  contravene  public  policy  of  the 
actual  situs  and  forum,  or  would  work  injury  or  injustice  to 
the  citizens  of  the  State.  Then  this  law  cannot  govern  and  the 
courts  will  administer  the  lex  fori} 

In  regard  to  land  the  validity  of  the  conveyance  to  pass  title 
is  governed  by  the  lex  situs,  but  the  effect  as  an  assignment  is 
to  be  determined  by  the  lex  loci  contractus,  unless  the  enforce- 
ment of  this  law  would  contravene  public  policy  or  work  injus- 
tice or  injury  to  the  citizens  of  the  forum.*  However,  some  of 
the  cases  hold  that  the  lex  situs  of  the  land  controls  under  all 
circumstances.^     Resident  creditors  may   always   take   advan- 

1.  Covey  V.  Cutler,  55  Minn.  18,  3.  liarnett  v.  Kinney,  147  U.  S. 
56  N.  W.  255;  Pritchard  v.  Nor-  476,  13  8.  Ct.  303;  Egbert  v.  Baker, 
ton,  106  U.  S.  124,  1  S.  Ct.  102;  58  Conn.  319,  20  A.  466;  Frank  v. 
Hanford  v.  Paine,  32  Vt.  442,  78  Bobbitt,  155  Mass.  112,  29  N.  E. 
Am.  Dec.  586  and  note;  Barnett  v.  209;  Walters  v.  Whitlock,  9  Fla. 
Kinney,    147   U.   S.  476,   13   S.   Ct.  86,  76  Am.  Dec.  607. 

403;    Frazier  v.   Fredericks,  24   N.  4.  May  v.  Bank,  122  111.  551,  13 

J.  L.  162.  N.  E.  806;  Chafee  v.  Bank,  71  Me. 

2.  McKibben  v.  Ellingson,  58  514,  36  Am.  Rep.  345;  Thornton  v. 
Minn.  205,  59  N.  W.  1003,  49  Am.  Rosenfeld,  42  Mo.  474,  97  Am.  Dec. 
St.    Rep.    499;    Cragin    v.    Lamkin,  351. 

7  Allen  (Mass.),  395;  Cook  v.  Van  5.  Moore    v.    Church,    70    Iowa, 

Horn,  81  Wis.  291,  50  N.  W.  893;  208,   30   N.   W.  855,   59   Am.   Rep. 

May    V.    Wannamacher,    111    Mass.  439;    Augusta    Sav.    Bank   v.    Stel- 

202.    See,  also,  Thompson  v.  Ellenz,  lings,  31  S.  Car.  380,  9  S.  E.  1028. 
58  Minn.  301,  59  N.  W.  1023. 

472 


Ch.    15  INTERSTATE    CONTRACTS.  §    406 

tage  of  the  invalidity  of  the  assignment  under  the  lex  fori  et 
situs,  validly  executed  in  another  State.® 

Many  cases  make  no  difference  whether  the  creditors  are 
citizens  of  the  forum  or  non-residents,  in  substituting  the  lex 
fori  for  the  lex  celebrationisJ  But  some  of  the  court  decide 
that  the  citizens  of  the  locus  contractus  must  abide  by  their  own 
laws,  giving  the  benefits  of  the  lex  fori  et  situs  to  all  other 
creditors.^ 

Involuntary  assignment,  if  the  title  once  vests  in  the  assignee, 
and  is  not  invalid  by  the  lex  fori  et  situs,  is  valid  in  every  juris- 
diction, as  a  legal  exercise  of  the  owner's  rights  to  convey  his 
property.^ 

Involuntary  assignments  pass  the  title  to  the  assignee  only  of 
property  within  the  State.  This  is  the  American  doctrine.^" 
But  where  the  rights  of  foreign  creditors  are  not  concerned,  the 
lex  domicillii  will  be  recognized  in  other  jurisdictions."  How- 
ever, if  the  property  is  non-negotiable  chose  in  action,  the 
assignee  cannot  sue  in  his  own  name  unless  the  lex  fori  per- 
mits it.^^ 

The  lex  fori  demands  the  payment  of  taxes  of  the  sitv^  et 

6.  Green  v.  Iron  Works,  49  N.  J.  8t.  Rep.    104;    Faulkner  v.   Hymes, 
Eq.   48,   23   A.   498;    Woodward   v.  142  Mass.  53,  6  N.  E.  846. 
Brooks,  128  111.  222,  20  N.  E.  685,  9.  Askew  v.   Bank,   83   Mo.   366, 
3  L.  R.  A.  702  and  note,  15  Am.  St.  53  Am.  Rep.  590;  First  Nat.  Bank 
Rep.  104.  V.  Walker,  61  Conn.  154,  23  A.  696; 

7.  Barth  v.  Backus,  140  N.  Y.  Crapo  v.  Kelly,  16  Wall.  (U.  S.) 
230,  35  N.  E.  425,  23  L.  R.  A.  47,  37  622;  Law  v.  Mills,  18  Pa.  St.  185. 
Am.  St.  Rep.  545;  Woodward  v.  10.  Crapo  v.  Kelly,  16  Wall.  (U. 
Brooks,  128  111.  222,  20  N.  E.  685,  S.)  610;  Booth  v.  Clark,  17  How. 
3  L.  R.  A.  702  and  note,  15  Am.  St.  (U.  S.)  322;  Paine  v.  Lester,  49 
Rep.  106;  Augusta  Bank  v.  Stel-  Conn.  196,  26  Am.  St.  Rep.  442. 
lings,  31  S.  Car.  360,  9  S.  E.  1028;  11.  Willetts  v.  Waite,  25  N.  Y. 
First  Nat.  Bank  v.  Walker,  61  583;  Kirkland  v.  Lowe,  33  Miss. 
Conn.  154,  23  A.  696.  423,  G9  Am.  Dec.  355. 

8.  Cole  V.  Cunningham,  133  U.  12.  Milne  v.  Moreton,  6  Binn. 
S.  107,  10  S.  Ct.  2G9;  Woodward  v.  (Pa.)  353,  6  Am.  Dec.  466;  Kirk- 
Brooks,  128  111.  222,  20  N.  E.  685,  land  v.  Lowe,  33  Miss.  423,  69  Am. 
3   L.   R.   A.   702  and  note,   15   Am.  Dec.  355. 


473 


§§    406,  407  OPERATION    OF    CONTKACTS.  Ch.    15 

forum}^  and  debts  due  to  residents.^^    And  many  of  the  courts 
give  tlie  privilege  to  non-resident  creditors. ■^^ 

In  England  the  doctrine  is  sustained  that  an  involuntary 
assignment  conveys  title  in  every  jurisdiction,  even  against 
creditors  resident  in  the  actual  situs  et  forum}^ 

§  407.  As  to  the  situs  of  personal  property. — Formerly  it 
was  held  in  England  that  personal  property  has  no  situs, 
and  that  with  respect  to  the  disposition  and  to  the  trans- 
mission of  it,  either  by  succession  or  act  of  the  party,  it 
follows  the  law  of  the  person.^  But  there  has  been  a  departure 
from  this  rule,  as  shown  in  the  preceding  section,  and  now  a 
distinction  is  drawn  between  cases  of  succession,  as  in  marriage, 
death  and  bankruptcy,  where  the  property  follows  the  person 
and  so  governed  by  the  law  of  his  domicil,  and  isolated  transac- 
tions of  alienation  and  the  creation  of  special  claims  against 
the  property,  in  which  it  is  to  be  considered  independently  of 
its  owner  and  so  governed  by  the  law  where  it  is  situated,  lex 
rei  sitae. 

The  present  rule  is  this,  that  questions  as  to  the  transfer  or 
acquisition  of  property  in  corporeal  movables,  or  of  any  less 
extensive  real  rights  in  them,  as  pledge  or  lien,  are  generally 
decided  by  lex  rei  sitae} 

So  as  to  priority  of  conflicting  claims  or  liens,  lex  rei  sitae 
prevails,  the  right  of  priority  being  a  personal  privilege,  de- 
pendent on  the  place  where  the  property  has  its  actual  situs 

13.  Harrison  v.  Sterry,  5  Cranch.  425,  23  L.  R.  A.  47,  37  Am.  St.  Rep. 
(U.  S.),  289.  545;    Blake    v.    Williams.    6    Pick. 

14.  Sturtevant    v.    Armsby    Co.,        (Mass.)   286,  17  Am.  Dec.  372. 

66  N.  H.  557,  23  A.  368,  49  Am.  St.  16.  Paine    v.    Lester,    44    Conn. 

Rep.   627;    May  v.    Bank,    122    111.  196,    26    Am.    Rep.    442;    Booth   v. 

551,   13   N.   E.   806;   Long  v.   Gird-  Clark,  17  How.    (U.  S.)   322. 

wood,  150  Pa.  St.  413,  24  A.  711,  23  1.  Sill  v.  Wooswick  (1791),  1  H. 

L.  R.  A.  33  and  note.  Bl.  665. 

15.  Cole  V.  Cunningham,  133  U.  2.  Inglis  v.  Usherwood,  1  East, 
S.  167,  10  S.  Ct.  269;  Barth  v.  515;  Coote  v.  Jeeks,  L.  R.  13  Eq. 
Backus,    140  N.   Y.   230,  35   N.   E.  597. 


474 


Ch.  15 


INTERSTATE    CONTRACTS. 


407 


and  where  the  court  sits  which  has  jurisdiction.^  So  in  case 
there  is  a  conflict  between  two  States  upon  an  assignment  for 
the  benefit  of  creditors,  made  in  one  State,  and  an  attachment 
of  the  property  of  the  assignor  in  the  other  State,  lex  rei  sitae, 
or  actual  situs  governs.'* 

The  reason  for  applying  the  lex  rei  sitae  or  actual  situs  to 
movables,  is  for  the  protection  of  citizens  of  the  actual  situs  of 
the  personalty.^  So  in  voluntary  or  involuntary  assignments 
for  benefit  of  creditors,  lex  rei  sitae  will  govern.  Thus,  prefer- 
ences will  be  denied  under  a  voluntary  assignment  made  in 
Minnesota  for  the  benefit  of  creditors,  to  non-resident  pledgees, 
who  hold  grain  warehouse  receipts  as  security  for  promissory 
notes,  the  grain  having  its  actual  situs  in  Iowa,  !Nebraska,  and 
South  Dakota,  where  such  pledge  was  invalid,  because  the  trans- 
action was  governed  by  lex  rei  sitae,  or  actual  situs  of  the  grain.® 

The  old  fiction,  mobUia  personam  sequntur,  has  been  ren- 
dered obsolete,  as  personal  property,  under  certain  conditions, 
has  an  actual  as  well  as  a  legal  situs.^ 


3.  Harrison  v.  Sterry,  5  Cranch 
(U.  S.),  289. 

4.  Warner  v.  Jeffray,  96  N.  Y. 
248,  48  Am.  Rep.  616;  Green  v.  Van 
Buskirk,  5  Wall.   (U.  S.)   307. 

5.  Blake    v.    Williams,     6     Pick. 


(Mass.)     286,    17    Am.    Dee.    372; 
Taylor  v.  Boardman,  25  Vt.  581. 

6.  Swedish-Am.  Nat.  Bank  v. 
Bank,  89  Minn.  98,  94  N.  W.  218. 

7.  Whar.  Conf.  L.,  pp.  297,  305; 
Westlake  Priv.  Int.  L.,  p.  172:  Sa- 
vigny,  VIII,  sec.  366. 


476 


§    408  OPERATION    OF    CONTRACTS.  Cll.    15 

ARTICLE  II. 

Exceptions  to  the  General,  Rule. 

Section  408.  Exceptions  to  General  Eule. 

409.  Selling  Intoxicants. 

410.  Carriers — Stipulation  Exempting  from  Negligence. 

411.  Interstate  Commerce. 

412.  Sunday  Contracts. 

413.  Gaming — Futures. 

414.  Smuggling  Contracts. 

415.  Enforcing  Revenue  Laws  of  Another  Country. 

416.  Repeal  of  Statute. 

417.  Usurious  Contracts. 

418.  Void  Usurious  Contracts. 

§  408.  Exceptions  to  general  rule. — In  general  the  validity 
of  a  contract  is  to  be  determined  by  the  law  of  the  place  where 
it  is  made.  If  valid  there,  it  is,  by  the  general  law  of  nations, 
held  to  be  valid  everywhere,  by  the  tacit  or  implied  consent  of 
the  parties ;  if  void  or  illegal  there,  as  a  general  rule,  it  is  held 
void  and  illegal  everywhere.  The  exceptions  to  this  rule  as  to 
the  validity  of  contracts  is,  that  contracts  which  are  in  evasion 
or  fraud  of  the  laws  of  a  country,  or  of  the  rights  or  duties  of  its 
subjects ;  which  are  against  good  morals,  or  against  religion, 
or  against  public  rights;  and  those  opposed  to  the  national 
policy  or  national  institutions; — are  declared  affected  by  such 
considerations  though  they  may  be  valid  by  the  laws  of  the 
place  where  they  are  made.^  A  contract  which  has  for  its  object 
the  performance  of  an  act  which  is  prohibited  by  express  stat- 

1.  Gist  V.  Tel.  Co.,  45  S.  Car.  344,  Brainard,  41  N.  H.  25o;  Phinney  v. 

23  S.  E.  143,  55  Am.  St.  Rep.  763  Baldwin,   16   111.   108,   61   Am.  Dec. 

and  note;  Story  on  Confl.  of  L.  242-  62;    Chewning    v.    Johnson,    5    La. 

244;    Andrews   v.    Herriot,    4    Cow.  Ann.  678,  52  Am.  Dec.  610;  Rousil- 

(N.   Y.)    508,  510;    2   Kent's   Com.  Ion   v.    Rousillon,    14    Ch.    D.    351; 

457 ;  Whitney  v.  Whitney,  35  N.  H.  Klinck  v.  Price,  4  W.  Va.  4,  6  Am. 

457;  Armstrong  v.  Best,  112  N.  Car.  Rep.  268;  Davis  v.  Bronson,  6  Iowa, 

59,  17  S.  E.  14,  25  L.  R.  A.  188,  34  410;   Thatcher  v.  Morris,   11  N.  Y. 

Am.    St.    Rep.    473 ;    Oscanyan    v.  437 ;  Flagg  v.  Baldwin,  38  N.  J.  Eq. 

Arms  Co.,  103  U.  S.  261;   Bliss  v.  219. 

476 


Ch.    15  INTEBSTATB    CONTRACTS.  §    408 

ute,  or  the  commission  of  which  incurs  a  penalty  is  as  much, 
illegal  and  void  as  if  the  statute  in  express  terms  had  declared 
it  to  be  so.^ 

A  contract  for  the  sale  and  delivery  of  merchandise  in  a 
State  where  such  sale  is  not  prohibited,  may  be  sued  in  another 
State,  where  such  merchandise  cannot  be  lawfully  imported. 
But  if  the  delivery  is  to  be  in  a  State  where  the  importation  is 
interdicted,  then  the  contract  cannot  be  sued  in  the  interdicting 
State,  because  the  giving  of  legal  effect  to  such  contract  will  be 
repugnant  to  its  rights  and  interest.  And  so  if  a  foreign  State 
allows  marriages  incestuous  by  the  laws  of  nature,  such  mar- 
riage cannot  be  allowed  to  have  any  validity  in  the  United 
States.  But  marriages  not  naturally  unlawful,  but  prohibited 
by  the  laws  of  one  State,  and  not  of  another,  if  celebrated  where 
they  are  not  prohibited,  will  be  held  valid  in  a  State  where  they 
are  not  allowed.' 

As  stated,  a  contract  valid  by  the  law  of  the  State  in  which 
it  is  made  and  is  to  be  performed,  is  valid  and  enforceable  every- 
where, unless  it  is  clearly  contrary  to  good  morals,  or  repugnant 
to  the  policy  or  positive  statute  of  the  jurisdiction  in  which  it 
is  sought  to  be  enforced.*  However,  if  the  contract  is  valid  and 
enforceable  where  made,  yet  if  it  is  against  the  public  policy  or 
statute  of  a  State  where  it  is  sued  upon,  the  court  will  not  en- 
force it.  Thus,  a  court  will  not  take  jurisdiction  of  a  case  to 
charge  a  person  on  an  unsigned  representation  as  to  the  credit 
of  another  person,  although  it  is  valid  where  made,  if  the  stat- 
ute of  the  State  of  the  forum  provides  that  no  suit  shall  be 
brought  to  charge  one  on  such  representation,  unless  it  is  in 
writing,  signed  by  the  party  to  be  charged  thereon.^ 

2.  Territtv.  Bartlett  21  Vt.  184.  Railroad  Co.,   113   Ind.    169,   15   N. 

3.  Greenwood  v.  Curtis,  6  Mass.  E.  230;  Flagg  v.  Baldwin,  38  N. 
358,  378,  4  Am.  Dec.  145.  J.  Eq.  219,  48  Am.  Rep.  308;  Hyatt 

4.  Tilden  v.  Blair,  21  Wal.  (U.  v.  Bank,  8  Bush  (Ky.),  193;  Mil- 
S.)  241;  Hill  V.  Spear,  50  N.  H.  liken  v.  Pratt,  125  Mass.  374,  28 
253,  4  Am.  Rep.  205;  Wayne  County  Am.  Rep.  241. 

Sav.   Bank  v.   Low,   81   N.  Y.   566;  5.  Third  Nat.  Bank  v.  Steel,  129 

Hawley  v.  Bibb,  69  Ala.  52;  Stix  Mich.  434;  88  N.  W.  1050,  64  L. 
V.  Matthews,  75  Mo.  96;   Burns  v.        R.  A.  119. 

477 


§  409 


OPERATION    OF    CONTRACTS. 


Ck    15 


§  409.  Selling  intoxicants. — It  would  he  possible  for  an  in- 
dependent State  to  enforce  all  contracts  made  and  to  be  per- 
formed within  its  territory,  without  regard  to  how  much  they 
may  coutravene  the  policy  of  the  laws  of  other  States.  But 
no  State  has  adopted  this  polic}'.  As  a  general  proposition,  an 
agreement  to  break  the  laws  of  a  foreign  country  is  invalid.  On 
this  principle  the  courts  hold  a  sale  invalid  when  the  contract 
contemplates  a  design  on  the  part  of  the  purchaser  to  resell  con- 
trary to  the  laws  of  a  neighboring  State,  which  is  furthered  by 
the  vendor.^ 

It  is  not  enough,  however,  as  generaly  held,  to  prevent  a  re- 
covery of  the  price  that  the  seller  had  reason  to  believe  that  the 
buyer  intended  to  resell  the  goods  in  violation  of  law.^ 

So  when  a  sale  of  intoxicating  liquors  in  another  State  is 
made  with  a  view  to  a  breach  of  the  law  of  another  State,  it  is 
void.^  The  right  to  contract  with  a  view  to  a  breach  of  the  laws 
of  another  State  of  this  Union  ought  not  to  be  recognized  as 
against  a  statute  passed  to  carry  out  fundamental  beliefs  of 
right  and  wrong,  shared  by  a  large  part  of  the  American  people.* 


1,  Way  well  v.  Reid,  5  Term  R. 
699;  Gaylord  v.  Soragen,  32  Vt. 
110,  76  Am.  Dec.  154;  Fisher  v. 
Lord,  63  N.  H.  514,  3  A.  927;  Hull 
V.  Ruggles,  56  N.  Y.  424. 

2.  Finch  v.  Mansfield,  97  Mass. 
89;  Adams  v.  Coulliard,  102  Mass. 
167;  Tracy  v.  Talmage,  4  Kernan 
(N.  Y.),  162;  Hodgson  v.  Temple, 
5  Taunt.  181;  Mclnlyre  v.  Parks,  3 
Met.  (Mass.)  207;  Sortnell  v. 
Hughes,  1  Curtis,  C.  C.  244;  Green 
V.  Collins,  3  Cliff.  494;  Hill  v. 
Spear,  50  N.  H.  253,  9  Am.  Rep. 
205;  Dater  v.  Earl,  3  Gray  (Mass.), 
482;  Compare  Suit  v.  Woodhall, 
113  Mass.  391;  Pearse  v.  Brooks, 
L.  R.  1  Exch.  213;  Taylor  v.  Ches- 
ter, L.  R.  4  Q.  B.  309,  311. 


3.  Webster  v.  Munger,  8  Gray 
(Mass.),  584;  Orcutt  v.  Nelson,  1 
Gray  (Mass.),  536;  Hubbell  v. 
Flint,  13  Gray  (Mass.),  277;  Aiken 
V.  Blaisdell,  41  Vt.  655;  Banchor 
V.  Mansel,  47  Me.  58;  Davis  v. 
Bronson,  6  Iowa,  410;  Adams  v. 
Coulliard,  102  Mass.  107;  Graves 
V.  Johnson.  156  Mass.  211,  30  N. 
E.  818,  15  L.  R.  A.  834  and  note, 
32  Am.  St.  Rep.  446  and  note. 

4.  Territt  v.  Bartlett,  21  Vt.  184. 
See,  also,  Banchor  v.  Mansel,  47 
Me.  58;  Graves  v.  Johnson,  156 
Mass.  211,  30  N.  E.  818,  15  L.  R.  A. 
834  and  note,  32  Am.  St.  Rep.  446 
and  note,  Aikens  v.  Blaisdell,  41 
Vt.  655;  Compare  Brown  v. 
Weiland,  116  Iowa,  711,  89  N".  W. 
171,  61  L.  R.  A.  417  and  note. 


4Y8 


Ch.    15  INTERSTATE    CONTRACTS.  §§    410,  411 

§  410.  Carriers — Stipulation  exempting  from  negligence. — 
The  Federal  law  of  this  country,  bj  which  stipulations  of  a 
common  carrier  exempting  him  from  the  consequences  of  his 
own  negligence,  are  held  to  be  extorted  without  and  real  assent 
of  the  shipper,  and  to  be  against  public  policy,  and  void, — is 
controlling,  in  suits  brought  here  upon  instruments  made  here 
on  board  foreign  ships,  under  bills  of  lading  signed  by  foreign 
masters,  though  such  stipulations  be  valid  by  the  law  of  the 
ship's  country,^  So  all  stipulations  made  in  this  country  de- 
signed to  secure,  directly  or  indirectly,  the  exemption  of  the  car- 
rier from  the  consequences  of  his  own  negligence,  whether  the 
carrier  is  a  domestic  or  a  foreign  ship,  are  equally  illegal  and 
void  under  the  Federal  law,^  and  in  the  States.  But  such  pro- 
hibition does  not  affect  a  contract  made  in  one  State  for  through 
shipment  of  a  commodity  to  another  State,  when  the  charter 
of  the  carrier  so  contracting  was  granted  in  a  third  State  and 
prohibited  such  stipulation.^ 

The  State  laws  of  exempting  a  carrier  from  liability  are  con- 
trolled by  the  lex  loci  celebrationis.  In  some  States  such  stipu^ 
lations  are  valid,*  in  others  they  are  void.^  But  this  subject 
will  be  treated  in  another  section.® 

§  411.  Interstate  commerce. — In  shipping  merchandise  from 
one  State  into  another,  interstate  commerce  brings  the  matter 
under  the  Federal  law.     So  a  citizen  of  one  State  has  the  right 

1.  Dohen-  v.  The  Etona,  64  Fed.  3.  Thomas  v.  Railroad  Co.,  63 
Rep.  880;   Monroe  v.  The  Iowa,  50        Fed.  Rep.  200. 

Fed.   Rep.   561;    Hathaway   v.    The  4.  O'Regan   v.    Ciinard,   etc.   Co., 

Brantford  City,  29   Fed.  Rep.   373.  160  Mass.   356,   35   N.   E.    1070,  39 

2.  Phoenix  Ins.  Co.  v.  Transp.  Am.  St.  Rep.  484;  Hazel  v.  R.  R. 
Co.,  117  U.  S.  312,  323,  .6  S.  Ct.  750,  Co.,  82  Iowa,  477,  48  N.  W.  926. 
1176;  The  Hadji,  22  Blateh.  C.  C.  5.  Brockway  v.  Express  Co.,  168 
235,  20  Fed.  Rep.  875;  New  Jersey  Mass.  257,  47  N.  E.  83;  Davis  v. 
Steam  Nav.  Co.  v.  Bank,  6  How.  Railroad  Co.,  93  Wis.  470,  67  N. 
(U.  S.)  344;  Monroe  v.  The  Iowa,  W.  16,  1132,  33  L.  R.  A.  654,  57 
50  Fed.  Rep.  561 ;  Slocura  v.  Assur-  Am.  St.  Rep.  935. 

ance    Co.,    42    Fed.    Rep.    23n;    Tl;e  6.  Sect.    421.      This    subject    is 

Guildhall,  58  Fed.  Rep.  796;  Doherr        often  regulated  by  statute. 
V.  The  Etona,  64  Fed.  Rep.  880. 

479 


§§    411,  412  OPERATION    OF    CONTRACTS.  Cll.    15 

to  import  beer  into  another  State  and  sell  it  there  in  its  original 
packages ;  until  sold  by  the  importer  it  is  not  subject  to  State 
regulations,  and  a  State  law  which  forbids  the  sale  of  an  im- 
ported article  by  the  importer,  in  unbroken  packages,  is  a  regu- 
lation of  interstate  commerce  and  void.^  And  so  a  State  cannot 
prohibit  a  party  from  selling  in  its  territory,  by  contract  made 
there,  his  machinery  manufactured  in  another  State.^ 

But  a  statute  prohibiting  the  manufacture  or  sale  of  intoxi- 
cating liquors,  even  for  exportation,  and  prohibiting  also  the 
sale  of  imported  foreign  intoxicating  liquor,  unless  in  its  orig- 
inal packages,  is  not  in  conflict  with  interstate  commerce.^  Such 
contract  being  prohibited  by  tlie  law  of  the  State  where  made, 
is  illegal  and  void  there,  and  its  invalidity  constitutes  a  good 
defense  in  an  action  upon  the  contract  in  another  State.'* 

Sending  lottery  tickets  from  one  State  to  another  is  inter- 
state commerce  and  can  be  controlled  by  Congress.^ 

§  412.  Sunday  contracts. — Statutes  against  the  performance 
of  labor  on  Sunday  do  not  invalidate  a  contract  made  in  a  State 
for  labor  to  be  performed  on  Sunday  wholly  outside  of  the  State.* 
So  a  vendor  of  personal  property  when  sued  upon  his  war- 
ranty, cannot  defend  upon  the  ground  that  the  sale  was  made 
on  Sunday,  if  the  sale  occurred  in  a  State  where  there  was  no 
law  prohibiting  the  enforcement  of  Sunday  contracts.' 

If  the  statute  declares  such  contracts  void,  a  note  made  and 
delivered  in  a  State  on  Sunday  is  void,  although  payable  in 
another    State.^      But  a  contract  made  on  Sunday  in  a  State 

1.  Leisy  v.  Hardin,  135  U.  S.  100,  5.  Champion  v.  Ames,  188  U.  S. 
10  S.  Ct.  681.                                              321,  23  S.  Ct.  311,  26  Nat.  Cor.  Rep. 

2.  Cooper  Manuf.  Co.  v.   Fergu-        74. 

son,  113  U.  S.  727,  5  S.  Ct.  739.  6.  Said    v.     Strowberg,     55    Mo. 

3.  Pearson  v.   Distillery  Co.,   72       App.  438. 

Iowa,    348,    34   N.   W.    1 ;    Kidd   v.  7.  McKee  v.  Jones,  67  Miss.  405. 

Pearson,   128  U.   S.   1,   9   S.  Ct.  6;  7   So.  348. 

Tredway  v.  Riley,  32  Neb.  495,  49  8.  Arbuckle  v.  Reaume,  96  Mich. 

N.  W.  268,  29  Am.  St.  Rep.  447.  243,  55  N.  W.  808. 

4.  Tredway  v.  Riley,  32  Neb.  495, 
49  N.  W.  268. 

480 


Ch.    15  INTERSTATE    CONTRACTS.  §§    412,413 

where  it  is  valid  is  not  against  good  morals  and  can  be  enforced 
in  any  State,^  wliore  the  statute  does  not  prohibit. 

§  413.  Gaming — Futures. — Option  contracts  are  generally 
held  void.  But  a  contract  for  the  future  delivery  of  commodi- 
ties, made  in  a  State  and  to  be  performed  there  for  a  principal 
residing  in  another  State,  is  governed  by  the  laws  where  it  is 
made,  and  if  valid  there  it  will  be  enforced  in  any  other  State,^ 
unless  prohibited  by  statute.^  So  commercial  paper  executed 
and  issued  in  'New  York  in  the  course  of  speculation  in  cotton 
options  in  tliat  State,  will  be  enforced  in  Indiana  in  the  hands 
of  an  innocent  holder,  neither  the  statutes  of  either  State  de- 
claring such  paper  void  in  the  hands  of  such  holder.^ 

It  is  an  unwarranted  perversion  of  speech  to  hold  that  the 
consideration  of  a  note  which  has  been  executed  to  obtain  money 
with  which  to  purchase  options,  or  to  put  up  as  margins  in 
speculations,  is  money  won  by  playing  at  a  game  or  by  betting 
on  the  hands  of  others  who  do  play,  or  to  repay  money  lent  at 
the  time  and  place  of  such  play.  However,  much  dealings  in 
options  may  resemble  gambling  or  betting,  and  demoralizing 
and  pernicious  as  it  may  be,  it  cannot,  with  any  degree  of  pro- 
priety, be  said  to  be  winning  or  losing  money  by  playing  at  or 
betting  upon  any  game,  within  the  meaning  of  the  statute.* 

So  statutes  involving  penal  consequences  cannot  be  extended 
by  construction  so  as  to  include  acts  not  in  terms  forbidden, 
merely  because  of  their  resemblance  to  the  acts  prohibited,  or 
because   they    may   be    equally    demoralizing    and    injurious.^ 

9.  Swann  v.  Swann,  21  Fed.  Rep.  514,  14  So.  33;  Gist  v.  Tel.  Co.,  45 

299;    Adams   v.   Gay,    19   Vt.    358;  S.  Car.  344,  23  S.  E.   143,  55  Am. 

Brown  v.  Browning,   15  K.  I.  422,  St.  Rep.  763  and  note. 
7    A.    403,    2    Am.    St;    Rep.    208;  3.  Sondheim  v.  Gilbert,  117  Ind. 

O'Rourke    v.    O'Rourke,    43    Mich.  71,  18  N.  E.  687,  10  Am.  St.  Rep. 

58,  4  N.  531;  Compare  Gauthier  v.  23  and  note,  5  L.  R.  A.  432. 
Cole,  17  Fed.  Rep.  716.  4.  White   v.    Barber,    123    U.    S. 

1.  Lehman  v.  Feld,  37  Fed.  Rep.  392,  8  S.  Ct.  221. 

852;    Ward   v.    Vosburgh,    31    Fed.  5.  Shaw  v.  Clark,  49  Mich.  384, 

Rep.  12.  43  Am.  Rep.  474. 

2.  Lemonius  v.  Mayer,   71  Miss. 

481 


§    413  OPEBATION    0¥    CONTRACTS.  Ch.    li> 

Hence,  an  option  contract  may  be  enforced  in  another  State, 
where  there  is  no  statute  prohibiting  such  contracts,  either  in 
the  State  of  its  inception  or  in  the  State  where  suit  is  brought 
to  enforce  it;   it  is  not  a  gaxning  contract.^ 

If  the  consideration  of  a  contract  is  a  gaming  debt,  or  the  sale 
of  lottery  tickets,  the  validity  depends  upon  the  law  of  the  situs 
of  the  consideration,  which  may  not  be  the  lex  loci  celebrationis 
or  the  lex  loci  solutionis^  Hence,  the  validity  of  a  note  made 
in  one  State  and  payable  there,  given  in  consideration  of  liquor 
sold  and  delivered  to  the  maker  of  the  note  in  another  State, 
will  be  determined  by  the  law  of  the  latter  State,  so  far  as  the 
sale  of  the  liquor  affects  it.  The  law  of  the  place  where  the 
liquor  is  sold  will  govern  the  validity  of  the  sale  and 
the  validity  of  the  contract  for  the  price.  If  the  sale 
was  invalid  at  the  place  where  made,  then  the  note  is 
invalid.*  If  the  sale  is  valid  there,  then  the  note  is 
valid,  though  the  sale  would  have  been  invalid  if  made  where 
the  note  was  executed  or  where  it  was  to  be  paid.®  In  such  case 
the  lex  celebrationis  and  the  lex  solutionis  of  the  note  had  noth- 
ing to  do  with  the  matter  as  the  sale  was  legal  where  made.  So 
the  validity  of  a  contract,  the  consideration  of  which  is  the  sale 
of  a  slave,  will  depend  on  the  law  of  the  place  of  sale,  the  lex 
loci  considerationis}^ 

But  where  a  note  was  given  to  settle  a  gambling  debt,  and 
valid  in  the  hands  of  an  innocent  holder  in  ITew  York,  the  inno- 
cent holder  cannot  enforce  payment  in  Illinois,  where  a  stat- 
ute prohibits  such  contracts." 

6.  Sondheim  v.  Gilbert,  117  Ind.  9.  Webber  v.  Howe,  36  Mich.  150, 
71,  18  N.  E.  687,  5  L.  R.  A.  432,  10  24  Am.  Rep.  590;  Fred  Hiller  Brew- 
Am.  St.  Rep.  23  and  note.  ing  Co.  v.  De  France,  90  Iowa,  395, 

7.  Peet  V.  Hatcher,  112  Ala.  514,  57  N.  W.  959. 

21  So.  711,  57  Am.  St.  Rep.  45;  Me-  10.  Boundtree  v.   Baker.   52   111. 

Intyre    v.    Parks,    3    Met.     (Mass.)  241,  4  Am.  Rep.  597. 

207.  11.  Pope  V.  Hanke,  155  111.  617, 

8.  Dolan    v.    Green.     110    Mass.  40  N.  E.  839,  28  L.  R.  A.  568. 
322. 


482 


CL.    15  INTERSTATE    CONTRACTS.  §§    414-416 

§  414.  Smuggling  contracts. — ^A  contract  made  in  another 
nation  to  smuggle  dutiable  goods  into  the  United  States,  will 
be  treated  as  void  by  our  courts/^  if  the  vendor  knows  of  the 
intention  of  the  vendee,  and  packs  them  up  and  marks  them  in 
a  manner  convenient  for  that  purpose,  he  is  equally  guilty  and 
the  contract  cannot  be  enforced.^^  But  if  the  vendor  has  only  a 
mere  knowledge  of  the  intention  of  the  vendee  to  smuggle  the 
goods,  and  does  not  combine  with  the  purchaser  in  act  or  intent, 
he  can  then  collect  the  price." 

§  415.  Enforcing  revenue  laws  of  another  country. —  ^o 
nation  is  bound  to  recognize  or  enforce  contracts  of  another 
nation.  Hence,  when  contracts  which  violate  the  revenue  laws 
of  a  country  where  made,  come  before  the  courts  of  another 
nation,  these  courts  will  not  take  notice  of  the  foreign  revenue 
laws.^  So  a  contract  which  violates  such  laws  may  be  enforced 
in  another  jurisdiction.^  But  when  the  contract  is  void  where 
made,  because  not  stamped,  it  is  void  in  every  country  where 
an  action  is  brought  to  enforce  it.^  The  rule  should  be  that 
though  the  parties  bargain  in  one  country  to  violate  the  revenue 
laws  of  another,  if  the  contract  is  not  otherwise  immoral  or 
against  public  policy,  it  will  be  enforced  in  the  place  of  its 
inception.'* 

§  416.  Repeal  of  statute. — A  subsequent  repeal  of  a  statute 
can  have  no  effect  upon  a  contract  made  while  it  was  in  force.^ 

12.  Armstrong  V.  Toler,  11  Wheat  241,  243;  Clegg  v.  Levj%  3  Camp. 
(U.  S.)  258;  Holman  v.  Johnson,  106;  Bristow  v.  Sequeville,  5  Exch. 
Cowp.  341;  Cambioso  v.  Maflfet,  2  27;).  See  Ludlow  v.  Van  Rensse- 
Wash.  C.  C.  98.  \aer,  1  Johns.  94. 

13.  Waymell  v.  Reed,  5  Term  R.  4.  Armendiaz  v.  Serna,  40  Tex. 
599;  Tracy  v.  Talmage,  14  N.  Y.  291;  Merchants'  Bank  v.  Spalding. 
162,   67   Am.   Dec.   132   and  note.  5  Selden   (N.  Y.),  53;  Kohn  v.  The 

14.  Holman  v.  Johnson,  Cowp.  Renaisance,  5  La.  Ann.  25,  52  Am. 
341.  Dee.  577;  Compare  Graves  v.  John- 

1.  Ivey  V.  Lelland,  42  Miss.  444,  son,  156  Mass.  211,  30  N.  E.  818, 
2  Am.   Rep.   606.  15  L.  R.  A.  834  and  note.  32  Am. 

2.  Kohn    V.    The    Renaisance,    5        St.  Rep.  446  and  note. 

La.  Ann.  25,  52  Am.  Dec.  577.  5.  Lemonius  v.  Mayer,  71  Miss. 

3.  Alves  V.  Hodgson,  7  Term  R. 

483 


§§    416,  417  OPERATION    OF    CONTRAOTS.  Ch.    1 5 

The  repeal  of  a  law  by  the  enactment  of  another  statute  will 
not  give  validity  to  a  contract,  if  it  was  void  under  the  old  law.® 
The  validity  of  a  contract  must  be  determined  by  the  statute 
in  force  at  the  time  it  is  made ;  if  it  is  valid  when  made,  a  sub- 
sequent change  or  repeal  of  the  law  cannot  impair  its  validity ; 
and  if  it  is  void  when  made,  no  subsequent  law  can  import  to  it 
validity.^  A  subsequent  law  cannot  affect  the  validity  of  a 
previous  contract,  which  was  void  at  its  inception.^  Nor  can 
the  change  of  a  law  render  invalid  a  contract  which  was  valid 
at  its  inception.^ 

§  417.  Usurious  contracts. — Persons  making  contracts  for 
the  payment  of  interest  may  contract  to  pay  either  at  the  rate 
of  the  place  of  contract  or  at  the  place  of  performance.  The 
fact  that  the  rate  of  the  place  at  which  it  is  agreed  that  it  shall 
be  paid  is  higher  than  the  rate  in  the  other  place  will  not  ex- 
pose the  transaction  to  the  imputation  of  usury,  unless  the  place 
agreed  on  was  fixed  for  the  purpose  of  obtaining  the  higher 
rate,  and  to  evade  the  penalty  of  the  usurious  contract  at  the 
other  place.^  So  a  bond  executed  and  delivered  in  one  State, 
but  made  payable  in  another,  is  governed,  as  to  the  objection 
of  usury,  by  the  laws  of  the  latter  State.^  Where  the  parties  agree 
that  a  note  shall  operate,  the  law  of  that  place  will  control  as 
to  usury,  though  inadvertently  dated  and  made  payable  in  an- 
other State.^  So  where  a  proposition  to  lend  money  was  ac- 
cepted by  the  lender  in  another  State  where  he  resided,  and 

514,    14   So.   33;    Hathaway  v.   Mo-  A.  466,  16  Am.  St.  Rep.  695;  Gilli- 

ran,  44  Me.  67.  land  v.  Phillips,  1  S.  Car.  152. 

6.  Milne  v.  Huber,  3  McLean,  9.  Boyee  v.  Tabb,  18  Wall.  (U. 
C.  C.  212;  McKissick  v.  Mcl^ssick,  S.)    546. 

6  Humph.    (Tenn.)    75.  1.  Miller  v.  Tiffany,  1  Wall.   (U. 

7.  Wright  V.  Boiling,  27  Ala.  S.)  298;  Sturdivant  v.  Bank,  60 
259;   Robinson  v.   Barrows,  48  Me.        Fed.  Rep.  730. 

186;   Anding  v.  Levy,  57  Miss.  51,  2.  Building    and    Loan    Asso.    v. 

34  Am.  Rep.  435  and  note.  Logan,  66  Fed.  Rep.  827. 

8.  Handy  v.  Publishing  Co.,  41  3.  Bank  v.  Mann,  94  Tenn.  17, 
Minn.   188,  42  N.  W.  872,  4  L.  R.  27  N.  W.  1015,  27  L.  R.  A.  565  and 

note. 

484 


Ch.    15  INTERSTATE    CONTBACTS.  §    417 

where  the  contract  was  made  by  its  terms  to  be  performed,  the 
contract  is  governed  by  the  laws  of  that  State.*  So  a  judgment 
rendered  in  a  State  on  an  obligation  made  and  entered  into  in 
another  State,  bears  interest  according  to  the  law  of  the  State 
where  the  judgment  is  rendered.^ 

The  intention  to  charge  usurious  interest  is  an  essential  ele- 
ment of  usury.^  So  a  contract  will  be  sustained  if  possible. 
If  the  interest  be  higher  at  the  lex  loci  celebrationis  than  at  the 
lex  loci  solutionis,  the  parties  may  contract  for  the  higher  in- 
terest,^ if  the  statute  at  the  place  of  making  does  not  prohibit 
such  contract  at  the  domicil  of  the  parties,  which  is  the  place 
of  contract.^ 

Under  this  rule,  when  not  prohibited  by  statute,  the  courts 
will  sustain  the  contract,  if  secured  by  mortgage  on  land  where 
the  higher  rate  is  legal,®  though  this  rule  is  not  adopted  in  all 
the  States.^"  And  so  it  has  been  held  that  the  contract  shall  be 
sustained  if  the  rate  of  interest  is  legal  in  the  State  where  the 
money  is  to  be  used.^^  However,  this  is  not  the  law  in  other 
States.^2 

Several  courts  hold  that  the  lex  solutionis  governs  as  to 
usury."    The  weight  of  authority  is  that  the  law  of  the  place 

4.  Bank  v.  Gibson,  60  Ark.  269,  505,  18  S.  E.  131;  American  Free- 
30  S.  W.  39.  hold,   etc.   Mortg.   Co.   v.   Jefferson, 

5.  Neil  V.  Bank,  50  Ohio  St.  193,  69  Miss.  770,  12  So.  464,  30  Am. 
33  N.  E.  720.  St.  Rep.  587. 

6.  Balfour  v.  Davis,  14  Oreg.  47,  11.  Kellogg  v.  Miller,  13  Fed. 
12  P.  89.  Rep.  198;   Scott  v.  Perlee,  39  Ohio 

7.  Miller  v.  Tiffany,  1  Wall.   (U.  St.  81. 

S.)    298;    Cromwell    v.    County    of  12.  Central  Trust  Co.  v.  Burton, 

Sac,  96  U.  S.  51.  74  Wis.  329,  43  N.  W.  141. 

8.  See  Kurd's  111.  Stat.  1903,  Ch.  13.  Dickinson  v.  Edwards,  77 
74,  sec.  8.  N.  Y.   573,  33  Am.   St.  Rep.   671; 

9.  Dugan  v.  Lewis,  79  Tex.  246,  National,  etc.  Asso.  v.  Askworth, 
14  S.  W.  1024,  23  Am.  St.  Rep.  91  Va.  726,  22  S.  E.  521;  Pioneer 
332;  Arnold  v.  Potter,  22  Iowa,  Saving,  etc.  Co.  v.  Cannon,  96  Tenn. 
195;  Jackson  v.  Mortg.  Co.,  88  Ga.  599,  36  S.  W.  386,  54  Am.  St.  Rep. 
756,  15  S.  E.  812.  858;    Freese  v.   Brownell,   35   N.  J. 

10.  Odom  V.  Mortg.  Co.,  91  Ga.       L.  285,  10  Am.  Rep.  239. 

485 


§§    417-419  OPEEATION    0¥    CONTEACTS.  Ch.    15 

where  the  money  is  loaned  governs  as  to  the  question  of  usury ; 
that  is  the  lex  considerationis  controls." 

The  question  of  usury  is  governed  by  the  situs  of  the  land 
mortgaged,  where  the  money  is  loaned  by  a  foreign  corporation 
who  also  has  a  situs  in  the  State  where  the  land  is  situated,  and 
where  the  money  is  actually  loaned,  but  notes  are  payable  at 
the  principal  situs  of  the  foreign  corporation.^^ 

§  418.  Void  usurious  contracts. — A  note  being  void  at  the 
place  of  the  contract  on  account  of  usury,  is  void  everywhere 
and  will  not  be  enforced  f-  and  this  is  so  though  the  same  con- 
tract had  been  made  in  another  State  where  it  is  sued  upon, 
would  have  been  valid  if  made  in  the  latter  State.  Because  if 
a  contract  is  void  in  its  inception  it  does  not  exist.^ 


AETICLE  III. 

Enforcement  of  Contkact. 

Section  419.  Interpretation  of  Contract. 

420.  Agreement  as  to  What  Law  Shall  Govern. 

421.  Common   Carriers — Contract  of  Aflfreighment. 

422.  Alien  Labor  Acts. 

§  419.  Interpretation  of  contract. — Much  of  the  seeming 
conflict  in  the  adjudications  upon  the  subject  of  the  lex  loci 
contractus  will  disappear  by  carefully  discriminating  as  to  the 
precise  nature  of  the  issue  and  matter  under  consideration. 
Matters  bearing  upon  the  execution,  interpretation,  and  valid- 

14.  DeWolf      V.      Johnson,      10  15.  National    B.    &   L.   Asso.    v. 

Wheat.    (U.   S.)    367;   Akro  v.  De-  Brahan,  80  Miss.  407,  31   So.  840, 

mond,    103   Mass.   318;    Bennett   v.  57  L.  R.  A.  793. 

Asso.,   177   Pa.  St.  233,  35  A.  684,  1.  McGarry  v.  Nicklin,  110  Ala. 

55   Am.    St.    Rep.   723;    Watson   v.  559,  17  So.  726,  55  Am.  St.  Rep.  40 

Lane,    52    N.    J.    L.    550,    20    A.  and  note. 

894;    National    B.    &    L.    Asso.    v.  2.  McAllister   v.    Smith,    17    lU. 

Brahan,  80  Miss.  407,  31   So.  840,  328,   65   Am.   Dec.   651;    Yerger  v. 

57  L.  R.  A.  793,  Raines,  4  Humph.    (Tenn.)    259. 

486 


Ch.    15  INTERSTATE    CONTBACTS.  §    419 

ity  of  a  contract  are  determined  by  the  law  of  the  place  where 
it  is  made.  Matters  connected  with  its  performance  are  regu- 
lated by  the  law  prevailing  at  the  place  of  performance.  Mat- 
ters respecting  the  remedy  depend  upun  the  law  of  the  place 
where  the  suit  is  brought.^ 

The  lex  loci  regulates  the  right  under  a  foreign  contract, 
and  the  lex  fori  gives  the  remedy.^ 

A  contract  will  be  presumed  to  have  been  made  in  the  State 
in  which  suit  is  brought,  unless  the  contrary  is  made  to  appear.^ 
And  when  made  in  one  State  to  be  performed  in  another,  the 
general  rule  is  that  it  will  be  governed  by  the  laws  of  the  State 
where  it  is  to  be  performed.* 

In  considering  a  contract  five  incidents  must  be  considered: 
1,  The  validity  of  the  contract ;  2,  the  effect ;  3,  the  interpreta- 
tion ;  4,  the  discharge ;  5,  the  remedy  for  its  breach.  These 
incidents  relate  (a)  to  the  making;  (b)  to  the  performance 
of  the  contract;  (c)  to  the  consideration;  (d)  to  the  intention 
of  the  parties,  express  or  implied ;  (e)  to  the  law  controling  the 
parties  irrespective  of  intention.  Everything  relating  to  the  mak- 
ing of  the  contract  is  to  be  governed  by  the  lex  loci  contractus ; 
everything  relating  to  the  performance  is  governed  by  the  lex 
loci  solutionis;  and  everything  relating  to  the  validity  of  the 
consideration  is  governed  by  the  lex  loci  considerationis,  or 

1.  Scudder  v.  Bank,  91  U.  S.  4.  National  Mut.  Build.  &  L. 
406.  Asso.  V.  Ashworth,   91  Va.  706,  22 

2.  Denny  v.  Faulkner,  22  Kan.  S.  E.  521;  Andrews  v.  Pond,  13 
89;  Laird  v.  Hodges,  26  Ark.  356;  Pet.  (U.  S.)  65;  Coghlan  v.  Rail- 
Partee  v.  Silliaman,  44  Miss.  272;  road  Co.,  142  U.  S.  101,  12  S.  Ct. 
Broadhead  v.  Noyes,  9  Mo.  56;  Don  150;  Fear  v.  Bartlett,  81  Md.  435, 
V.  Lippman,  5  Clark  &  F.  1;  Sco-  32  A.  322,  33  L.  R.  A.  721  and  note; 
ville  V.  Canfield,  14  Johns.  (N.  Meroney  v.  Asso.,  116  N.  Car.  882, 
Y.)  338,  7  Am.  Dec.  469;  Mineral  21  S.  E.  924,  47  Am.  St.  Rep.  841; 
Point  Railroad  v.  Barron,  83  111.  Wick  v.  Dawson,  42  W.  Va.  43,  24 
365.  S.  E.  587;   Roberts  v.  Ins.  Co.,  118 

3.  Baltimore,    etc.    R.   R.    Co.   v.  N.  Car.  429,  24  S.  E.  780;  Tilling- 
Scholes,    14   Ind.   App.   524,  43   N.  hast  v.  Lumber  Co.,  39  S.  Car.  484, 
E.   156,  56  Am.   St.  Rep.  307  and  18  S.  E.  120,  22  L.  R.  A.  49. 
note;    Latham    v.    De    Loeselle,    3 

App.  Div.  525,  38  N.  Y.  S.  270. 

487 


§§    419,  420  OPEKATION    OF    CONTKACTS.  Ch.    15 

situs  of  the  consideration.^  But  the  place  of  contract  is  not 
necessarily  one  place.  It  is  the  law  of  all  the  places  at  which 
and  for  the  purpose  for  which  it  has  reference.  Thus,  a  bill  of 
exchange  is  to  be  construed  according  to  the  law  of  such  place 
at  which  the  contract  contemplated  that  something  is  to  be  done 
bj  either  of  the  parties.^ 

If  in  case  of  a  sealed  contract  the  question  as  to  the  form  of 
the  remedy,  the  lex  fori  determines.^  But  if  the  question  is 
as  to  the  effect  and  obligation  of  the  contract,  the  lex  loci  con- 
tractus will  govern.^ 

Whether  the  remedy  shall  be  at  law  or  in  equity,  in  perso- 
nam  or  in  rem,  is  governed  by  the  lex  loci} 

Where  an  action  is  barred  by  the  statute  of  limitations  where 
suit  is  brought,  and  such  judgment  is  final,  thereby  extinguish- 
ing the  cause  of  action,  no  suit  can  be  brought  in  another  juris- 
diction ;    otherwise  if  the  cause  of  action  is  not  extinguished. ^° 

§  420.  Agreement  as  to  what  law  shall  govern. —  When 
parties  living  in  different  States  execute  a  contract  in  one,  or 
partly  in  one  and  partly  in  the  other,  and  it  is  to  be  performed 
in  the  other,  it  is  often  a  matter  of  great  difficulty  to  decide  by 
the  law  of  which  State  the  contract  is  to  be  construed,  and  its 
validity  determined.  Parties  may  avoid,  when  making  such 
contracts,  such  questions  by  agreeing  for  themselves  where  the 
contract  shall  be  performed.^ 

5.  Skudder  v.  Bank,  91  U.  S.  etc.  Ins.  Co.  v.  Aitkins,  125  N.  Y. 
406.  666,  26  N.  E.  732;   Drake  v.  Rice, 

6.  Hibernia    JSTat.    Bank    v.    La-        130  Mass.  419. 

combe,  84  N.  Y.  367.  10.  Brand    v.    Brand    (Ky.),    63 

7.  Pritchard  v.  Norton,  106  U.  L.  R.  A.  206.  See  "Conflict  of 
S.  124,  1  S.  Ct.  102;  LeRoy  v.  Laws:  Substance  or  Obligation  of 
Beard,  8  How.   (U.  S.)  451.  Contract  Distinguished  from  Rem- 

8.  Pritchard   v.   Norton,    106   U.  edy."— 16  Harv.  L..  Review,  262. 

S.  124,  1  S.  Ct.  102.  1.  Smith    v.    Parsons,    55    Minn. 

9.  Burchard   v.    Dimbar,    82    111.  520,  57  N.  W.  311;   Penn.  Mut.  L. 
450,    25    Am.    Rep.    334;    Ruhe    v.  Ins.  Co.  v.  Trust  Co.,  72  Fed.  Rep. 
Buck,  124  Mo.   178,  27  S.  W.  412,  413,  38  L.  R.  A.  33  and  note,   19 
25  L.  R.  A.   178  and  note,  46  Am.  C.  C.  A.  286,  37  U.  S.  App.  692. 
St.  Rep.  439  and  note;  New  York, 

488 


Cll.    15  INTERSTATE    CONTRACTS.  §    420 

The  nile  upon  the  subject  of  construction  is  well  settled  that 
contracts  are  to  be  construed  according  to  the  laws  of  the  State 
whore  made,  unless  it  is  presumed  from  their  tenor  that  they 
were  entered  into  with  a  view  to  the  laws  of  some  other  State.^ 

A  court  having  before  it  a  contract  made  between  parties 
living  under  different  systems  of  laws,  is  not  bound,  as  a  mat- 
ter of  law,  to  apply  either  the  lex  loci  solutionis  or  the  lex  loci 
contractus ;  the  question  is  what  law  the  parties  intended  to 
govern  the  contract.^  The  presumption  that  the  lex  loci  con- 
tractus or  lex  loci  solutionis  governed  the  contract  may  be  dis- 
placed by  other  terms  of  the  contract  or  circumstances  of  the 
case  showing  the  intention.^  Hence,  a  life  insurance  policy 
issued  in  Pennsylvania  which  contains  a  stipulation  that  it  is  a 
contract  made  to  be  executed  in  the  State  of  H^&w  York,  and 
shall  be  construed  only  according  to  the  laws  of  that  State,  will 
be  construed  as  though  actually  executed  and  delivered  in  ISTew 
York.^  The  weight  of  authority  is  that  where  parties  make  a 
contract  of  loan  in  one  State  to  be  performed  in  another  they 
may,  acting  in  good  faith  and  without  intent  to  evade  the  law, 
agree  that  the  law  of  either  State  shall  control.^ 

The  law  of  the  place  where  a  contract  is  made  governs  its 
nature,  obligation  and  interpretation,  unless  it  appears  that  the 
parties,  when  entering  into  the  contract,  intended  to  be  bound 
by  the  law  of  some  other  country.''^ 

But  it  is  a  diflScult  question  sometimes  to  ascertain  where  the 
situs  of  the  contract  is.  The  situs  of  the  remedy  when  the 
parties  are  in  different  States,  the  situs  of  the  performance,  and 

2.  Hale  v.  Steam  Nav.  Co.,  15  7.  Cox  v.  United  States,  6  Pet. 
Conn.  538,  546.  (U.  S.)    172;   Scudder  v.  Bank,  91 

3.  Hamlyn  v.  Talisker  Distillery  U.  S.  406 ;  Pritchard  v.  Norton,  106 
(1899),  App.  Cas.  202.  U.  S.   124,   1  S.  Ct.   102;   Lamar  v. 

4.  Jacobs  V.  Lyonnais,  12  Q.  B.  Micou,  114  U.  S.  218,  5  S.  Ct.  857; 
Div.  589,  600.                                            ■    Watts   v.    Camors,    115    U.    S.    353, 

5.  Greesemer  v.  Ins.  Co.,  10  362,  6  S.  Ct.  91 ;  Liverpool  Steam 
Wash.  202,   38   P.   1007.  Co.   v.    Ins.    Co.,    129   U.    S.   397.   9 

6.  Robinson  v.  Bland,  2  Burr.  S.  Ct.  469;  Pope  v.  Nickerson,  3 
1077;    Miller    v.    Titiany.    1    Wall.  Story,  C.  C.  465,  484,  485. 

(U.   S.)    298. 

489 


§    420  OPERATION    OF    CONTRACTS.  CTl.    15 

the  situs  of  the  consideration  of  the  contract  enter  into  the  inter- 
pretation. If  the  situs  of  the  making  an  executory  contract, 
the  performance  and  the  consideration  are  the  same,  then  the 
situs  of  the  contract  is  at  once  determined.  But  when  these 
elements  are  dissociated  and  the  situs  of  the  contract  is  no 
longer  single  and  indivisible,  then  the  difficulty  arises,  and  the 
courts  are  in  conflict  as  to  the  situs  of  these  elements. 

The  definitions  of  the  lex  loci  contractus  may  be  resolved  in- 
to three  classes : 

1.  The  lav^^s  of  the  place  where  a  contract  is  made  must  gov- 
ern the  performance  of  its  terms  and  conditions.  But  when  it 
is  to  be  performed  in  a  different  place,  and  under  a  different 
jurisdiction  from  that  where  it  was  entered  into,  then  the  law 
of  the  place  of  performance  must  govern.  This  makes  the  situs 
of  the  performance  the  locus  contractus,  though  the  contract  was 
formed  in  another  jurisdiction.^ 

2.  The  validity,  the  nature,  the  interpretation,  and  the  obli- 
gation of  contracts  are  governed  by  the  lex  loci  contractus,  the 
law  of  the  place  where  the  contract  is  made.®  This  makes  the 
situs  of  the  lex  loci  celebrationis,  the  place  of  making  of  the 
contract,  the  locus  contractus,  though  the  contract  is  to  be  per- 
foormed  in  another  jurisdiction, 

3.  The  lex  loci  contractus  is  the  law  with  reference  to  which 
the  parties  contracted ;  or  the  law  which  the  parties  had  in  mind 
when  they  made  the  contract ;  or  the  law  which  the  parties  in- 
tended should  control  the  contract.^® 

8.  Lewis  V.  Headley,  36  111.  433,  Taylor  v.  Sharp,  108  N.  Car.  377, 
87  Am.  Dec.  27;  Equitable  Life  13  S.  E.  138;  Ivey  v.  Lelland,  42 
Assur.  Soc.  V.  Frommbold,  75  111.  Miss.  444,  97  Am.  Dec.  475;  Lind- 
App.  43;  Dickinson  v.  Edwards,  77  say  v.  Hill,  66  Me.  212. 

N.  Y.  573,   33  Am.  Rep.  671;    The  10.  Jacobs    v.    Credit    Lyonnais, 

Bradford   City,   29   Fed.   Rep.   373;  12  Q.  B.  D.  589;  Lloyd  v.  Guibert, 

Compare    Mutual    L.    Ins.    Co.    v.  L.  R.  1  Q.  B.  122;  Liverpool  Steam 

Cohen,    179    U.    S.    262,   21    S.    Ct.  Co.  v.   Ins.   Co.,   129   U.   S.   327,   9 

106.  S  Ct.  469;  Hall  v.  Cordell,  142  U. 

9.  Milliken  v.  Pratt,  125  Mass.  S.  116,  12  S.  Ct.  154;  New  Eng- 
374,  28  Am.  Rep.  241;  Commercial  land  Mortg.  Co.  v.  McLaughlin,  87 
Bank    v.    Davidson,    18    Oreg.    57;  Ga.    1,    13    S.   E.    81;    Thornton  v. 

49a 


Cll.    15  INTEKSTATE    CONTKACTS.  §    420 

In  these  three  divisions  it  is  considered  the  locus  contractus, 
or  the  situs  of  the  contract,  a  single  and  indivisible  unit  to  be 
determined  by  the  application  of  a  single  general  rule. 

A  better  rule  is,  that  the  validity  of  the  contract  is  to  be  de- 
termined by  the  lex  loci  contractus,  and  the  intention  of  the 
parties  governs  only  in  the  construction;  that  is,  the  lex  loci 
contractus  determines  its  validity  and  not  the  place  of  the  in- 
tention/^ 

In  many  cases  the  element  of  dispute  v^^ill  not  altogether  de- 
pend on  the  intention  of  the  parties,  but  in  part  on  the  law  and 
public  policy,  which  the  intent  of  the  parties  cannot  set  aside. 
So  the  maxim  "  modus  et  conventio  legem  vincunt  "  cannot 
apply. 

If  the  terms  of  a  written  contract  do  not  indicate  the  inten- 
tion of  the  parties  as  to  the  place  of  performance,  then  there  is 
a  prima  facie  presumption  that  the  contract  is  to  be  performed 
in  the  State  in  which  it  is  made.  Thus,  A  employed  B  to  super- 
intend a  factory  in  Kentucky,  for  two  years,  the  written  con- 
tract not  stating  the  place  of  performance.  Before  the  two 
years  had  expired,  A  moved  the  factory  to  Indiana ;  B  refused 
to  superintend  the  factory  in  the  latter  State  and  sued  A  for 
breach  of  contract,  and  the  court  held  that  it  was  the  prima 
facie  presumption  that  the  contract  was  to  be  pereformed  in 
Kentucky.^^  This  presumption  may  or  may  not  give  effect  to 
the  intention  of  the  parties ;  the  difficulty  can  be  met  more  sat- 
isfactorily by  holding  directly  that  such  contract  will  be  con- 
strued according  to  the  law  of  the  jurisdiction  in  which  it  was 
made.-^^  Such  a  presumption  originated  with  those  courts 
which  hold  that  a  contract  must  be  construced  according  to  the 
law  of  the  jurisdiction  in  which  it  is  to  be  performed.-^* 

Dean,  19  S.  Car.  583,  45  Am.  Rep.  12.  Cook  v.  Todd,  72  S.  W.  779, 

796;   Bell   v.  Packard,  69  Me.   105,  24  Ky.  L.  Rep.  1909. 

31  Am.  Rep.  251.  13.  Mittenthal  v.  Mascagni,   183 

11.  American      Mortg.      Co.      v.  Mass.  19,  66  N.  E.  425,  60  L.  R.  A. 

Sewall,  92  Ala.   163,  9  So.   143,   13  812.  97  Am.  Rep.  404. 

L.  R.  A.  299.  14.    Lewis  v.  Hadley,  36  111.  433, 

87    Am.    Dec.    227;     Equitable    L. 

491 


§§    420,  421  OPERATION    OF    CONTKACTS.  Cll.    15 

It  would  seem  that  the  use  of  this  presumption  to  determine 
the  substantial  rights  of  the  parties  is  not  sound  law. 

§  421.  Common  carriers — Contract  of  affreightment. — The 

general  rule  is  that  the  nature,  the  obligation  and  the  inter- 
pretation of  a  contract  are  to  be  governed  bj  the  law  of  the 
place  where  it  is  made,  unless  the  parties  at  the  time  of  mak- 
ing it  have  some  other  law  in  view;  and  this  rule  requires  a 
contract  of  affreightment,  made  in  one  country  between  citi- 
zens or  residents  thereof,  and  the  performance  of  which  being 
there,  to  be  governed  by  the  law  of  that  country,  unless  the 
parties,  when  entering  into  the  contract,  clearly  manifest  a 
mutual  intention  that  it  shall  be  governed  by  the  law  of  some 
other  country.^  Hence,  a  contract  of  affreightment,  made  in 
an  American  port  by  an  American  shipper  with  an  EnglisE 
steamship  company  doing  business  in  such  port,  for  the^  ship- 
ment of  goods  there  and  their  carriage  to  and  delivery  in  Eng- 
land, where  the  freight  is  payable  in  English  currency,  is  an 
American  contract,  and  governed  by  American  law.^  When 
the  contract  is  to  be  completed  in  a  continuous  act,  the  per- 
formance of  which  may  run  through  several  States,  it  is  an 
entire  contract  and  not  divisible.  But  there  are  cases  which 
hold  that  parts  of  the  contract  is  completed  before  the  distance 
is  covered  and  the  goods  delivered.^  But  the  better  rule  is  that 
the  contract  is  continuous,  and  can  have  only  one  place  of  per- 

Asur.    Soc.    V.    Frommbold,    75    111.  2.  Liverpool    Steam    Co.    v.    Ins. 

App.   43;    DeSobry  v.   DeLalstre,  2  Co.,   129   U.   S.   397,   9   S.   Ct.  469; 

H.  &  J.  (Md.)  191,  3  Am.  Dec.  535;  The    Carib    Prince,    63    Fed.    Kep. 

Compare    Mutual    L.    Ins.    Co.    v.  266. 

Cohn,  179  U.  S.  262,  21  S.  Ct.  106.  3.  Burnett  v.  Railroad  Co.,   176 

1.  Liverpool    Steam    Co.    v.    Ins.  Pa.    St.   45,   34   A.    972;    Barter   v. 

Co.,   129  U.  S.  397,  9  S.  Ct.  469;  Wheeler,  49  N.  H.  9,  6  Am.  Rep. 

Pennsylvania   Co.   v.   Fairchild,   69  434;  Talbott  v.  Trans.  Co.,  41  Iowa, 

111.  260;  Brown  v.  Railroad  Co.,  83  247,   20   Am.    Rep.    589;    Curtis   v. 

Pa.  St.  316;  Curtis  v.  Railroad  Co.,  R.   R.   Co.,  74  N.  Y.    116,   30  Am. 

74   N.   Y.    116,    30   Am.   Rep.    271;  Rep.   271. 
Compare  Barter  v.  Wheeler,  49  N. 
H.  929,  6  Am.  Rep.  434. 


492 


CJb.    15  INTERSTATE    CONTRACTS.  §§    421,  422 

formance/   otherwise  the  carrier  may  be  subject  to  different 
liabilities. 

The  lex  celebrationis  governs  as  to  the  validity  of  stipulations 
in  bills  of  lading.''  And  so  the  question  whether  a  carrier  may 
exempt  himself,  by  public  notice  as  insurer,  is  governed  by  the 
lex  celebrationis,^  and  he  may  limit  his  common  law  liabality, 
if  the  contract  be  valid  at  the  lex  celebrationis?  And  the  rule 
applies  as  to  the  exemption  from  liability  of  a  telegraph  com- 
pany.^ But  a  contract  of  a  telegraph  company  made  where 
damages  are  not  allowed  for  mental  suffering  for  non-delivery 
of  message  on  time,  will  not  prevent  a  recovery  of  such  dam- 
ages in  a  State  where  such  neglect  is  a  public  offense,  subjecting 
the  company  to  liability  for  the  injuries  thereby  caused,  and 
whose  courts  permit  the  consideration  of  mental  anguish  in 
fixing  the  damages.^  And  where  the  public  policy  of  a  State 
forbids  the  limitation  of  a  carrier's  liability,  a  contract  of 
limitation  will  not  be  enforced  as  to  property  negligently  in- 
jured within  the  State  while  being  shipped  on  a  through  bill 
of  lading  into  the  State,  where  the  contract  was  made  and 
where  it  is  valid.^° 

§  422.  Alien  labor  acts. — The  alien  labor  acts  prohibit  the 
contracting  for  non-resident  aliens  in  a  foreign  country  to  per- 
form labor  in  the  United  States,  the  contract  being  entered  into 
in  the  foreign  State.  In  cases  founded  upon  these  acts,  the 
vital  element  of  the  offense  is  the  making  of  a  contract  in  a  for- 
eign country  with  the  non-resident  alien  previous  to  the  immi- 

4.  Liverpool  Steam  Co.  v.  Ins.  Cotton  Mills,  81  Ga.  522,  7  S.  E. 
Co.,  129  U.  S.  397,  9  S.  Ct.  469.  916,  2  L.  R.  A.  102  and  note. 

5.  Hazel     v.     Railroad     Co.,     82  8.  Reed  v.  Tel.  Co.,  135  Mo.  661, 
Iowa,  477,  48  N.  W.  926;   Davis  v.  37   S.  W.  904,  34  L.  R.  A.  492,  58 
Railroad   Co.,   93   Wis.   470,   67    N.  Am.   St.   Rep.   69.     This  matter   is 
W.   16,   1132,   33   L.   R.  A.   654,   57  generally  regulated   by  statute. 
Am.   St.   Rep.   935.  9.  Gray   v.    Tel.    Co.,    108    Tenn. 

6.  Hale  v.  Navigation  Co.,  15  39,  64  S.  W.  1063,  56  L.  R.  A.  301, 
Conn.  539,  39  Am.  Dec.  398.  91  Am.  St.  Rep.  706  and  note. 

7.  Western,  etc.  Railroad  Co.  v.  10.  Hughes  v.   Pcnn.   R.   R.   Co., 


202  Pa.  St.  222,  63  L.  R.  A.  513. 


493 


§    422  OPERATION    OF    CONTRACTS.  CTl.    15 

gration  or  importation  of  such  alien  into  the  United  States  to 
perform  labor  or  service  in  this  country,  and  in  pursuance  of 
which  such  non-resident  alien  comes  to  the  United  States  and 
enters  upon  the  performance  of  the  contract.  The  character 
of  the  act  is  made  to  depend  upon  the  locality  of  the  execution 
of  the  prohibited  contract.  It  is  perfectly  lawful,  notwith- 
standing the  alien  labor  acts,  to  contract  with  an  alien  within 
the  jurisdiction  of  the  United  States.^ 

1.  United    States    v.    Craig,    28       Rep.  91,  1  C.  C.  A.  49,  4  U.  S.  App 
Fed.    Rep.    795;    United    States   v.       41. 
Edgar,    45    Fed    Rep.    44,    48    Fed. 


494 


CHAPTER  XVI. 


Implied  Contracts. 

ARTICLE  I. 

By  Acts  of  the  Parties. 

Section  423.  Tolls. 

424.  Railway's  Implied  Contract  to  Send  Baggage  on  Same  Train 

with  Passenger. 

425.  Gifts. 

426.  Impairing  the  Obligations  of  Contracts. 

427.  Fraud  and  Mistake. 

428.  Pass-Book — Writing  Up. 

429.  Burden  of  Proof. 

§  423.  Preliminary — Tolls. — The  subject  of  implied  con- 
tracts covers  a  large  field  of  the  law.  In  an  express  contract 
the  expression  of  agreement  may  be  in  writing,  or  by  words, 
or  by  signs.  But  when  a  contract  arises  by  a  course  of  conduct, 
it  is  an  implied  contract.  An  implied  contract  can  exist  only 
when  there  is  no  express  contract  concerning  the  same  subject 
matter.  Thus,  if  A  makes  an  express  contract  with  B  to  per- 
form services  for  C,  C  is  not  liable  on  the  implied  contract 
because  he  received  the  benefit.  The  two  contracts  cannot  ex- 
ist together  governing  the  same  transaction.  There  cannot  be 
an  express  and  an  implied  contract  for  the  same  thing,  exist- 
ing at  the  same  time.  It  is  only  when  parties  do  not  expressly 
agree  that  the  law  interposes  and  raises  a  promise. 

Only  a  few  of  these  contracts  can  be  given  within  the  scope 
of  this  work.  The  first  will  be  the  implied  contract  arising 
with  case  of  tolls. 

Assumpsit  lies  for  tolls  due  for  passing  upon  a  turnpike  road. 
The  law  implies  a  promise  to  pay,  notwithstanding  the  party 

495 


§§    423,  424  OPEEATION    OF    CONTEACTS.  Ch.    16 

using  the  road  denies  his  liability  and  refuses  payment.  His 
denying  his  liability  and  refusing  to  pay  does  not  change  the 
irule;^  and  this  is  so  even  where  the  statute  has  provided  a 
penalty.^  Because  whatever  the  law  orders  one  to  pay,  that  be- 
comes instantly  a  debt,  which  he  has  beforehand  contracted  to 
pay.2 

So  an  action  on  an  implied  promise  will  lie  to  recover  legal 
tolls  for  the  use  of  a  turnpike  or  other  roads  where  tolls  are 
legally  collectible,*  although  the  defendant  has  always  claimed 
exemption  from  such  tolls.^ 

§  424,  Railway  company's  implied  contract  to  send  bag- 
gage on  same  train  with  passenger. — A  railway  company  im- 
pliedly undertakes  that  the  baggage  of  a  passenger  duly 
checked  shall  go  upon  the  same  train  on  which  he  takes  pas- 
sage, unless  he  gives  some  direction,  does  something  or  omits 
to  do  something  which  authorizes  the  carrier  to  send  the  bag- 
gage by  another  train. ^  So  where  a  carrier  without  sufficient 
reason,  fails  to  ship  the  baggage  of  a  passenger  upon  the  same 
train  with  the  passenger,  he  is  liable  for  its  destruction  upon 
another  and  later  train.^  On  the  other  hand,  it  has  been  held 
that  a  trunk  duly  checked,  implies  that  the  owner  is  a  pas- 
senger, and  if  there  be  no  passenger  and  the  trunk  is  lost,  the 
railroad  comnany  can  be  held  only  as  a  gratuitous  bailee,  and 

1.  Proprietors  v.  Taylor,  6  N.  6.  Wilson  v.  Railroad  Co.,  56 
H.  499;  Newport  v.  Saunders,  3  Me.  60,  96  Am.  Dec.  435,  57  Me. 
Barn.  &  Adol.  411;  Morris  v.  Bur-  138,  2  Am.  Rep.  26;  Fairfax  v. 
dett,   1  Camp.  222.  Railroad  Co.,  73  N.  Y.  167,  29  Am. 

2.  New  Albany,  etc.  Co.  v.  Lewis,  Rep.  119;  Toledo,  etc.  R.  R.  Co.  v. 
49  Ind.  161;  Central  Bridge  Corpo.  Tapp,  6  Ind.  App.  304,  33  N.  E. 
V.  Abbott,  4  Cush.    (Mass.)    473.  462;  Wald  v.  Railroad  Co.,  162  111. 

3.  3  Bl.  Com.  160;  Bowen  v.  545,  44  N.  E.  888,  35  L.  R.  A.  356, 
Hoxie,  137  Mass.  527;  Gray  v.  Ben-  53  Am.  St.  Rep.  332. 

nett,   3   Met.    (Mass.)    522.  7.  Wald  v.  Railroad  Co.,  1(;2  111. 

4.  New  Albany,  etc.  Co.  v.  Lewis,  545,  44  N.  E.  888,  35  L.  R.  A.  356, 
49  Ind.   161.  53  Am.  St.  Rep.  332. 

5.  Central   Bridge  Corpo.   v.  Ab- 
bott, 4  Cush.   (Mass.)   473. 


496 


Ch.    16  IMPLIED   CONTKACTS.  §§    424-426 

was  not  responsible  in  the  absence  of  gross  negligence ;  because 
baggage  implies  a  passenger  who  intends  to  go  upon  the  train 
and  receive  it  upon  the  arrival  of  the  train  at  the  end  of  the 
journey.* 

§  425.  Gifts. — A  gift  of  chattel,  accompanied  by  delivery,  is 
valid  and  irrevocable,  and  there  is  no  implied  contract  that  the 
donor  may  revoke  it.^  Delivery  is  essential,  both  at  law  and  in 
equity ;  but  when  the  article  is  once  delivered  the  gift  is  per- 
fect.^" And  so  where  a  gift  is  made,  the  subsequent  execution 
of  a  will  by  the  donor  does  not  operate  to  make  void  the  gift, 
even  though  the  property  may  fall  within  the  provisions  of  the 
will." 

And  if  in  a  transaction,  where  chattels  are  delivered,  if  in- 
tended by  the  parties  to  be  a  gift,  the  law  implies  no  agreement 
to  pay  for  them,  and  there  is  no  sale.^^ 

§  426.  Impairing  the  obligation  of  contract. — ^An  appoint- 
ment to  a  public  office  is  not  a  contract  within  the  clause  of 
the  Federal  Coonstitution,^  which  forbids  the  State  to  pass  any 
law  impairing  the  obligation  of  contract.  The  design  of  that 
clause  was  to  restrain  the  legislature  from  violating  the  right 
to  property.  But  as  an  appointment  or  election  to  office  is  not 
such  a  contract,  it  is  not  within  the  prohibition  of  the  Con- 
stitution.^ 

8.  Marshall  v.  Railroad  Co.,  126  11.  Sanborn  v.  Goodhue,  28  N. 
Mich.  45,  85  N.  W.  242;   Compare       II.  48,  59  Am.  Dec.  398. 

The     Elvira     Harbeck,     2     Blatch.  12.  Keiser  v.  State,  82  Ind.  379; 

336;    Wilson    v.    Railroad    Co.,    56  French    v.    Smith,    58    N.    H.    323; 

Me.   60,   96   Am.   Dec.   435,   57   Me.  Whaley  v.  Peak,  49  Mo.  80;   Osier 

138,  2  Am.  Rep.  26.  v.  Hobbs,  33  Ark.  215;  Watson,  v. 

9.  Sanborn    v.    Goodhue,    28    N.  Ledoux,  8  La.  Ann.  68,  28  Am.  Dec. 
H.  48,  59  Am.  Dec.  398;    Smith  v.  129.      See,   also,   Safety  Deposit  L. 
Smith,  7  Car.  &  P.  401 ;  Marston  v.  Ins.  Co.  v.  Smith,  65  111.  309. 
Marston,  20  N.  H.   573.  1.  Article  1,  sec.  10,  subd.  1. 

10.  Cook  v.Husted,  12  Johns.  (N.  2.  Dartmouth  College  v.  Wood- 
Y.)  188;  Marston  v.  Marston,  20  ward,  4  Wheat.  518,  627,  630;  Ho- 
N.  H.  573.                                                    boken  v.  Gear,  40  Miss.  265;   Hall 


State,  39  Wis.  79. 


497 


§§    426,  427  OPERATION    OF    CONTEACTS.  Ch.    16 

The  prospective  salary  or  other  emoluments  of  a  public 
officer  are  not  the  property  of  the  office  nor  the  property  of  the 
State.     They  are  not  property  at  all.^ 

A  person  holding  an  office  ousted  by  the  legislature,  has  no 
vested  right  in  it;  but  the  legislature  may  at  any  time  destroy 
it,*  when  the  tenure  of  the  office  is  not  fixed  by  the  Consti- 
tution.^ The  tenure  and  salary  of  a  public  officer,  except  when 
otherwise  provided  by  the  Constitution,  are  dependent  upon 
legislation.^ 

§  427.  Fraud  and  mistake. — After  an  account  stated  has  been 
accepted  it  can  only  be  defeated  by  showing  fraud  or  mistake. 
A  stated  account  may  be  impeached  either  wholly  or  in  part 
on  the  ground  of  fraud  or  mistake.  If  there  be  fraud  or  if  any 
mistake  affects  the  whole  account,  the  whole  will  be  opened 
and  a  new  account  will  be  directed  to  be  taken  without  refer- 
ence to  that  which  has  been  stated;  but  if  there  is  no  fraud, 
and  if  no  mistake  affecting  the  whole  account  can  be  shown, 
but  the  correctness  of  some  of  the  items  in  it  is,  nevertheless, 
disputed,  the  account  already  stated  will  not  be  treated  as 
non-existing,  but  will  be  acted  upon  as  correct,  save  so  far  as 
the  party  dissatisfied  with  any  item  can  show  it  to  be  erroneous. 
As  to  disputed  items  and  claims  of  each,  denied  by  the  other, 
it  is  not  binding;  these  items  and  claims  must  be  determined 
by  the  jury  from  the  evidence.^  Such  admission  by  the  debtor 
only  establishes,  prima  facie,  the  accuracy  of  the  account,  and 
dispenses  with  other  proof  of  the  correctness  of  the  items.  It  is 
open  to  impeachment  for  fraud,  mistake  or  errors.^    And  where 

3.  Connor  v.  New  York,  1  Seld.  6.  Butler  v.  Pennsylvania,  10 
(N.  Y.)   296.  How.   (U.  S.)  403. 

4.  State    V.    Douglass,    26    Wis.  1.  Rehill  v.  McTague,  114  Pa.  St. 
428,    7    Am.    Rep.    87;     People    v.  82,  7  A.  224,  60  Am.  Rep.  341. 
Comptroller,    20    Wend.     (N.    Y.)  2.  Cook  v.    Bouitz,   4    Daly    (N. 
595;    Hall    V.    State,    39    Wis.    79;  Y.),   117;   Lockwood  v.   Thome,   11 
Hoboken  v.  Gear,  27  N.  J.  L.  265.  N.  Y.  18;  Rose  v.  Savory,  2  Bing. 

5.  Taft  V.  Adams,  3  Gray  N.  C.  145;  Waldron  v.  Evans,  1 
(Mass.),  126;  Butler  v.  Pennsyl-  Dak.  11;  Thomas  v.  Hawks,  8 
vania,   10  How.    (U.   S.)    403.  Mees.   &   Wei.    140;    Gough  v.   Fin- 

498 


Ch.     16  IMPLIED    CONTRACTS.  §§    427,  428 

the  parties  in  settlement  of  a  disputed  claim  agree  upon  the 
amount  due,  the  defendant  cannot  then,  in  a  suit  against  him, 
set  up  that  there  is  nothing  due  against  him.^  Such  promise  is 
founded  upon  a  sufficient  consideration  and  can  be  enforced 
against  the  debtor,  although  he  may  be  able  to  prove  that  noth- 
ing in  fact  is  due  from  him,* 

If  parties  have  agreed  upon  an  account,  they  may,  by  mutual 
consent,  waive  this,  and  agree  to  a  reopening  and  restatement 
of  the  account ;  and  if,  after  such  statement,  the  creditor  accepts 
the  amount  as  thus  stated  as  full  payment  of  the  account,  with- 
out exception  or  reservation,  this  will  constitute  a  full  settle- 
ment of  his  whole  claim,  although  the  amount  received  is  less 
than  the  sum  agreed  on  as  his  due  at  the  first  settlement.^ 

The  rule  is  well  established  that  a  settled  account  may  be 
impeached  and  re-adjusted  by  proof  of  unfairness,  fraud  or 
mistake  in  law  or  fact.^  It  may  not  be  necessary  in  such  case 
to  open  the  whole  account,  but  the  mistake  can  be  corrected 
and  the  rights  of  the  parties  re-adjusted  as  to  such  mistake.^ 

§  428.  Pass-book,  written  up. — The  relation  of  a  bank  and 
its  depositor  is  one  simply  of  debtor  and  creditor,^  and  that  the 

don,  7  Exch.  48;  Bright  v.  CoflFman,  5.  Horn  v.  Railroad  Co.,  37  Minn. 

15    Ind.    371,    77    Am.    Dec.     96;  -.ild. 

Trueman  v.  Hurst,  1  Term  R.  40;  6.  Conville   v.    Sheridan,    144   N. 

Ware   v.   Manning,   86   Ala.   238,   5  Y.  686,  39  jST.  E.  405. 

So.    682;     Hawley    v.    Harran,    79  7.  Weisser  v.  Denison,   10  IST.  Y. 

Wis.   379,  48   N.   W.   676,  46   Am.  68,    61    Am.    Rep.    731;    Bruen    v. 

St.  Rep.  849;  NeflF  v.  Wooding,  83  Hone,  2  Barb.    (N.  Y.)    586;   Phil- 

Va.  432,  2  S.  E.  731;   Dunham  v.  lips  v.  Belden,  2  Edw.  Ch.  (N.  Y.) 

Griswold,   100  N.  Y.  224,  3  N.  E.  1 :  Welsh  v.  Bank,  73  N.  Y.  424,  29 

76.  Am.  Rep.   175;   Carpenter  v.  Kent, 

3.  Dunham  v.  Griswold,  100  N.  101  N.  Y.  591,  5  N.  E.  787;  Sam- 
Y.  224,  3  N.  E.  76;  Compare  Chris-  son  v.  Freedman,  102  N.  Y.  699,  7 
tian  V.  Ins.  Co.,  101  Ala.  634,  14  X.  E.  419;  Wheadon  v.  Olds,  20 
So.  374.  Wend.    (N.    Y.)     174;    Malcolm  v. 

4.  Stewart  v.  Ahrenfeldt,  4  De-  Fullerton,  2  Term  R.  645;  First 
nio  (N.Y.),  189:  Hehrum  v.  Kuhn,  Nat.  Bank  v.  Bank,  2  McCreary, 
61  N.  Y.  623;  Fleeter  v.  Weber,  78  C.  C.  438;  Conville  v.  Sheridan,  144 
N.   Y.    334;    Compare   Christian   v.  X.  Y.  686,  39  N.  E.  405. 

Ins.  Co.,   101  Ala.  634,   14  So.  374.  1.  Phoenix   Bank  v.    Risley,    111 

U.  S.  125,  127,  4  S.  Ct.  322. 

499 


§    428  OPERATION    OF    CONTEACTS.  Ch.    16 

depositor  is  not  chargeable  with  any  payments  except  such  as 
are  made  in  conformity  with  his  orders. 

The  object  of  a  pass-book  is  to  inform  the  depositor  from  time 
to  time  of  the  condition  of  his  account  as  it  appears  upon  the 
books  of  the  bank.  The  sending  of  his  pass-book  to  be  written 
up  and  returned  with  the  vouchers,  is,  in  effect,  a  demand  to 
know  what  the  bank  claims  to  be  the  state  of  his  account.  And 
the  return  of  the  book,  with  the  vouchers,  is  the  answer  to  that 
demand,  and,  in  effect,  imparts  a  request  by  the  bank  that  the 
depositor  will,  in  proper  time,  examine  the  account  so  ren- 
dered, and  either  sanction  or  repudiate  it;^  his  silence  is  re- 
garded as  an  admission  that  the  entries  are  correct,^  and  can 
only  be  opened  for  mistake  or  fraud.^ 

The  depositor  of  a  bank  must  examine  the  account  stated 
within  a  reasonable  time,  or  he  will  be  precluded  from  repudi- 
ating it  only  for  fraud  or  mistake.^  There  is  a  duty  owing 
from  the  depositor  or  customer  to  the  bank  to  act  with  that 
ordinary  diligence  and  care  that  prudent  business  men  generally 
bestow  on  such  cases,  in  the  examination  and  comparison  of 
the  debits  and  credits  contained  in  the  pass-book,  in  order  to 
detect  any  errors  or  mistakes  therein.®  More  than  this,  under 
ordinary  circumstances,  could  not  be  required. 

The  general  rule  is,  that  if  a  party  so  conducts  himself  that 
a  reasonable  man  would  take  the  representation  to  be  true,  and 
believe  that  it  was  meant  that  he  should  act  upon  it,  and  did 
act  upon  it  as  true,  the  party  making  the  representation  would 
be  equally  precluded  from  contesting  its  truth ;    and  conduct, 

2.  Leather  Manuf.  Bank  v.  Mor-  Compare  Frank  v.  Bank,  84  N.  T. 

gan,  117  U.  S.  96,  6  S.  Ct.  657.  209,  38  Am.  Rep.  501;  Manufactur- 

3.  Devaynes   v.   Noble,     1    Merv.  ers'  Bank  v.  Barnes,  65  111.  69,  16 
530,  535.  Am.    Rep.    576;    National    Bank   v. 

4.  Perkins    v.    Hart,    11    Wheat.        Tappan,   6  Kans.   456,   7  Am.   Rep. 
(U.     S.)      237,     256;     Wiggins     v.        568. 

Burkham,    10    Wall.     (U.    S.)     129,  6.  Hardy  v.   Bank,   51   Md.   562, 

132.  591,    34    Am.    Rep.    325;    Dana    v. 

5.  Leather  Manuf.  Bank  v.  Mor-  Bank,   132  Mass.   156,  158. 
gan,    117   U.   S.  96,  6   S.  Ct.  657; 


500 


Cll.    1()  IMPLIED    CONTBACTS.  §    428 

bj  negligence  or  omission,  when  there  is  a  duty  cast  upon  a 
person  by  usage  of  trade  or  otherwise  to  disclose  the  truth,  may 
often  have  the  same  effect'' 

The  courts  are  not  in  accord.  It  has  been  held  that  a  pass- 
book was  merely  an  account  stated,  and  that  the  neglect  of  the 
depositor  to  examine  it  would  operate  only  to  cast  on  him  the 
burden  of  proving  it  to  be  incorrect,  and  there  was  no  duty  on 
his  part  to  examine  it;  and  he  incurs  no  liability  for  checks 
forged  by  his  agent.^  This  doctrine  was  qualified  in  a  later 
decision^  but  now  in  iNew  York  the  doctrine  is  repudiated  in 
toto.  Thus,  a  depositor's  clerk  altered  genuine  checks  which 
were  paid  by  the  bank.  The  depositor  intrusted  the  verification 
of  the  checks,  to  see  that  they  corresponded  with  the  pass-book 
and  his  cash-book,  to  the  same  clerk,  and  it  was  held  that  the 
failure  to  discover  the  fraud  exonerated  the  bank  from  liability 
for  subsequent  checks,^*'  because  the  duty  of  reasonable  verifi- 
cation of  the  returned  checks,  is  placed  on  the  basis  of  the  well- 
established  banking  usage,  and  is  regarded  as  a  just  mitigation 
of  the  vigorous  liability  imposed  on  the  bank,^^  and  is  now  a 
well-established  principle  of  law.^^  However,  the  measure  of 
diligence  is  less  strict  in  the  event  of  an  indorsement  being 
forged,  as  the  drawer  of  a  check  cannot  reasonably  be  supposed 
capable  of  determining  the  genuineness  of  the  signature  of  the 
payee  or  a  subsequent  indorser.^^    The  depositor's  duty  to  verify 

7.  Freeman  v.  Cooke,  2  Exch.  10.  Critten  v.  Bank,  171  K  Y. 
654;  Carr  v.  Railway  Co.,  L.  R.  10  219,  63  N.  E.  969,  57  L.  R.  A.  529. 
C.  P.  307.  See,  also,  McKenzie  v.  11.  Dana  v.  Bank,  132  Mass. 
Linen  Co.,  6  App.  Cas.  82,  101;  186;  Leather  Manf.  Bank  v.  Mor- 
Miles  V.  Mcllwraith,  8  App.  Cas.  gan,  117  U.  S.  96,  6  S.  Ct.  657; 
120,  133;  Cornish  v.  Abington,  4  Critten  v.  Bank,  171  N.  Y.  219,  63 
Hurl.  &  N.  549,  556;  Blair  v.  Wait,  N.  E.  969,  57  L.  R.  A.  529. 

69  N.  Y.  113,  116.  12.  Myers  v.  Bank,  193  Pa.  St. 

8.  Weisser  v.  Denison,  10  N.  Y.  1,  44  A.  280,  74  Am.  St.  Rep.  672. 
68,  61  Am.  Dec.  731;  Welsh  v.  13.  Atlanta  Nat.  Bank  v.  Burke, 
Bank,  73  N.  Y.  424,  29  Am.  Rep.  81  Ga.  597,  7  S.  E.  738,  2  L.  R.  A. 
175.  96  and  note;  Shipman  v.  Bank,  126 

9.  Frank  v.  Bank,  84  N.  Y.  209,  N.  Y.  318,  27  N.  E.  371,  12  L.  R, 
38  Am.  Rep.  501.  A.  791  and  note,  22  Am.  St.  Rep. 


821. 


501 


§    428  OPERATION    OF    CONTKACTS.  Ch.    16 

his  account  does  not  extend  to  the  results  arising  from  the  neg- 
lect or  failure  to  do  so.  Under  the  new  rule  a  depositor  cannot 
recover  from  the  bank  any  forged  or  altered  checks  it  may  pay 
after  he  has  had  a  reasonable  time  in  which  to  discover  the  first 
fraud.  But  as  to  checks  paid  previously,  the  bank  is  still 
liable.^* 

But  the  courts  are  not  in  accord,  and  some  courts  make  no 
distinction,  and  hold  that  the  depositor's  failure  to  discover  the 
forgery  is  equivalent  to  a  ratification  of  all  the  checks  drawn, 
and  he  is  therefore  estopped  to  deny  their  genuineness,  and  is 
compelled  to  stand  the  loss.^^ 

The  damages  to  the  bank,  by  reason  of  the  depositor's  negli- 
gence, is  the  difference  between  the  whole  amount  and  the 
amount  recovered  back  by  the  bank.^® 

It  is  held  by  some  authority  that  if  the  depositor  intrusts  the 
examination  to  a  clerk  who-  has  forged  the  check,  and  thus  the 
forgery  is  not  discovered,  the  depositor  is  not  liable,  because 
notice  to  an  agent  who  is  acting  contrary  to  his  principal's  in- 
terests, does  not  affect  the  principal. ^'^  But  another  line  of  de- 
cisions holds  that  notice  to  the  clerk  is  notice  to  his  employer ; 
that  the  clerk's  knowledge  must  be  imputed  to  the  depositor,  for 
intention  is  not  the  determining  factor  in  the  case.^^  This  is 
on  the  ground  that  the  depositor  has  a  positive  duty  to  per- 
form and  by  delegating  it  to  his  clerk  does  not  lessen  his 
liability. 

Courts  are  in  conflict.  The  old  rule  was  and  is  now,  as  set 
forth  by  some  of  the  courts,  that  the  loss  arising  from  the 

Denison,  10  N,  Y.  68,  61  Am.  Dec.  Bank,  10  K  Y.  68,  61  Am.  Dec. 
219,  63  N.  E.  969,57  L.  R.  A.  529.       731;   Hardy  v.  Bank,  51  Md.  562, 

15.  Dana    v.    Bank,    132    Mass.       34  Am.  Rep.  325. 

156;  Leather  Manuf.  Bank  v.  Mor-  18.  Dana    v.    Bank,    132    Mass. 

gan,  117  U.  S.  96,  6  S.  Ct.  657.  156;   Leather  Manuf.  Bank  v.  Mor- 

16.  First  Nat.  Bank  v.  Allen,  gan,  117  U.  S.  96,  6  S.  Ct.  657; 
100  Ala.  476,  14  So.  235,  27  L.  R.  Bank  v.  Allen,  100  Ala.  476,  17  So. 
A.  426  and  note,  46  Am.  St.  Rep.  335,  27  L.  R.  A.  426  and  note,  46 
80.  Am.  St.  Rep.  80;  Critten  v.  Bank, 

17.  Welsh  V.  Bank,  73  N.  Y.  171  N.  Y.  219,  63  N.  E.  969,  57  L. 
424,  29  Am.  Rep.   175;   Weisser  v.  R.  A.  529. 

502 


Ch.  16  IMPLIED  CONTRACTS.         §§  428,  429 

payment  of  a  forged  check,  must,  as  between  the  bank  and 
the  depositor,  fall  primarily  upon  the  bank,  as  it  pays  the 
check  at  its  peril.  But  under  a  new  ruling,  which  is 
the  law  in  some  jurisdictions,  the  depositor  owes  a  duty 
to  examine  the  checks  and  his  pass-book  within  a  reason- 
able time,  and  if  he  neglects  so  to  do,  and  a  forgery 
is  overlooked  by  him,  the  loss  must  fall  on  him.  He  can- 
not recover  from  the  bank  for  any  forged  checks  he  may  pay 
after  he  has  had  a  reasonable  time  to  discover  the  fraud;  but 
as  to  checks  paid  previously  to  such  time,  the  bank  is  still 
liable.  This  rule  applies  though  the  depositor  gives  the  checks 
into  the  hands  of  his  clerk  who  forges  them,  as  the  notice  of 
the  clerk  can  be  imputed  to  the  depositor.  This  undoubtedly 
is  the  better  law. 

§  429.  Burden  of  proof. — The  burden  of  proof  is  always 
upon  the  party  having  that  liberty ;  for  the  court  takes  it  as  a 
stated  account  and  establishes  it.^  In  case  of  fraud,  an  account 
will  be  opened  in  toto,  even  after  the  lapse  of  a  considerable 
time;  but  if  no  fraud  be  proved,  an  account  which  has  been 
long  settled  will  not  be  opened.^  The  burden  of  proof  is  on  the 
party  who  assails  the  account  stated.^ 

But  the  acount,  in  order  to  constitute  a  contract,  should  ap- 
pear to  be  something  more  than  a  mere  memorandum ;  it  should 
show  upon  its  face  a  final  settlement,  expressed  with  clearness 
and  certainty.^ 

1.  Pit  V.  Cholmondeley,  2  Ves.  Thome,  18  N.  Y.  292;  Maybury  v. 
Sr.  565;  Vernon  v.  Vawdey,  2  Atk.  Berkery,  102  Mich.  126,  60  N.  W. 
119.  699;   Lake  v.  Tyson,  6  N.  Y.  461; 

2.  Rehill  v.  McTague,  114  Pa.  Davis  v.  Gallagher,  55  Hun  (N. 
St.  82,  7  A.  224,  60  Am.  Rep.  341.  Y.),  593,  9  X.  Y.  S.  11. 

3.  Ware  v.  Manning,  86  Ala.  4.  Coffee  v.  Williams,  103  Cal. 
238,  6   So.  682;    Cook  v.  Bouitz,  4  550,  37  P.  504. 

Daly    (N.    Y.),    117;    Lockwood   v. 


503 


§    430  OPEEATION    OF    CONTRACTS.  Ch.    16 

ARTICLE  II. 

Paying  Another's  Debts. 

Section  430.  Paying  Debts  of  Another. 

431.  Under  Obligations. 

432.  Voluntary  Payment  Raises  no  Assumpsit. 

433.  Rights  of  Partners  After  Dissolution. 

434.  Suretyship. 

435.  To  Save  Property. 

436.  Contribution. 

437.  Contribution  Among  Wrongdoers. 

438.  Contribution    Among     Wrongdoers — Exceptions    to  General 

Rule. 

439.  Indemnity. 

440.  Fraud. 

441.  Payment. 

442.  Express  Contracts. 

443.  Void  Contracts. 

444.  Difference  Between  Express  and  Implied  Contracts. 

§  430.  Paying  debts  of  another. — Voluntary  payment  of  an- 
otlier's  debts  creates  no  liability  against  tbe  debtor;^  for  no 
one  can  voluntarily  pay  another's  debts  and  then  insist  on  re- 
payment to  him.^  A  man  cannot  of  his  own  will  pay  another 
man's  debt  without  his  consent,  and  thereby  commit  himself 
into  a  creditor.^  The  law  does  not  permit  a  liability  of  a  party 
for  a  debt  to  one  person  to  be  shifted  so  as  to  make  him  debtor 
to  another  without  his  consent/  and  assumpsit  will  not  lie  for 
money  voluntarily  paid  by  one  on  the  debt  of  another  without 

1.  Jackisch  v.  Hardtke,  50  111.  &  Sel.  446;  Exall  v.  Partridge,  8 
App.  202;  Johnson  v.  Packet  Co.,  Term  R.  308,  310;  Sleigh  v.  Sleigh, 
L.  R.  3  C.  P.  38,  43;  Mayor  v.  5  Exch.  514;  Blanchard  v.  Associa- 
Hughes,  1  Gill  &  J.  (Md.)  480,  19  tion,  59  Me.  202;  Oden  v.  Elliott, 
Am.  Dec.  243;  Hearn  v.  Cullin,  54  10  B.  Mon.  (Ky.)  313;  South 
Md.  533.  Scituate      v.      Hanover,      9      Gray 

2.  Keifer  v.   Summers,   137   Ind.  (Mass.),    420;    Little    v.    Gibbs,    1 
106,  35  N.  E.  1103,  36  N.  E.  894;  South   (N.  J.),  211;  Beach  v.  Van- 
Durnford  v.   Messiter,    5   Maule  &  deburgh,  10  Johns.    (N.  Y.)    361. 
Sel.  446.  4.  Winsor     v.     Savage,     9     Met. 

3.  Durnford  v.  Messiter,  5  Maule  (Mass.)   348. 

504 


Ch.  16  IMPLIED  CONTRACTS.         §§  430,  431 

the  latter's  consent.     But  if  the  creditor  accepts  it  as  payment, 
it  extinguishes  the  debt  at  law.^ 

§  431.  Under  obligation. — In  some  transactions  the  law  im- 
plies a  fictitious  request  to  pay  the  debts  of  another.  So  when- 
ever one  person  allows  another  to  assume  such  a  position  that 
the  law  will  compel  the  latter  to  discharge  a  debt  of  the  former, 
then  the  law  imparts  a  request  and  promise  by  the  former  to 
the  latter  to  make  the  payment,  the  law  creates  the  agreement 
and  the  former  is  under  an  obligation  to  reimburse  the  latter 
for  such  payment.^  But  the  obligation  must  be  more  than 
moral.^ 

As  a  general  rule,  if  one  has  paid  money  for  the  benefit  of 
another,  which  the  latter  was  legally  bound  to  pay,  and  has  done 
so  for  a  reasonable  cause  and  not  officiously,  he  can  recover  the 
amount  in  assumpsit  of  the  party  for  whose  benefit  it  was  paid.^ 

So  when  a  carrier,  by  mistake,  delivers  goods  to  the  wrong 
person,  and  he  wrongfully  detains  them,  so  that  the  carrier  is 
compelled  to  pay  for  them,  he  is  liable  to  the  carrier  for  money 
thus  paid.^  And,  so,  when  a  partnership  is  compelled  to  pay  the 
personal  debt  of  one  of  the  partners,  he  is  liable  to  the  partner- 
ship for  the  amount  thus  paid.^*^  But  a  mere  volunteer  in  pay- 
ing the  debts  of  another  has  no  remedy  against  the  debtor.^^ 

5.  Martin  v.  Quinn,  37  Cal.  55;  465;  Tuttle  v.  Armstead,  53  Conn. 
Harrison  v.  Hicks,   1  Port.    (Ala.)        175,  22  A.  677. 

423,  27  Am.  Dec.   638.  7.    Atkins    v.     Banwell,    2    East 

6.  Hutton  V.  Eyre,  6  Taunt.  289;        505. 

Hawley  v.   Beverley,   6   Man.   &   G.  8.  Bailey    v.    Bussing,    28    Conn. 

221 ;   Johnson  v.  Packet  Co.,  L.  R.  455,  tj8  Am.  Dec.  404  and  note. 

3  C.  P.  38;   Sapsford  v.  Fletcher,  4  9.  Brown   v.    Hodgson,   4   Taunt. 

Term  R.  511;   Hales  v.  Freeman,  1  188. 

Brod.  &  B.   391;   Hutzler  v.  Lord,  10.  Cross  v.  Cheshire,  7  Exch.  43. 

64  Md.  534.  3  A.  891 ;  Beard  V.  Hor-  11   Bates    v.    ToAvnley,    2    Exch. 

ton,  86  Ala.  202,  5  So.  207 ;  Houser  152;     Sleigh     v.     Sleigh,     5     Exch. 

V.   McGinnas,   108   N.   Car.   631,   13  514;  Johnson  v.  Packet  Co.,  L.  R.  3 

S.    E.    139,    23    Am.    St.    Rep.    49;  C.  P.  38,  41;   Winsor  v.  Savage,  9 

Gressell    v.    Robinson,    3    Bing.    N.  Met.    (Mass.)   346. 

C.  10;  Perin  v.  Parker,  25  111.  App. 

505 


§§  432,  433  opEitATiON  of  conteacts.  Ch.   16 

§  432.  Voluntary  payment  raises  no  assumpsit. — Voluntary 
payments  give  no  cause  of  action  against  the  debtor  who  has 
not  requested  the  payer  to  discharge  the  debt.  It  falls  within 
the  rule  of  law,  that  the  payment  of  the  debt  raises  no  assump- 
sit against  the  person  whose  debt  is  paid,  and  no  action  will 
lie  by  reason  of  such  payment,  unless  a  request,  either  express 
or  implied,  to  make  the  payment  is  proved  ;^  for  no  one  can. 
make  himself  the  creditor  of  another  who  does  not  covenant 
either  in  fact  or  by  legal  implication.^ 

So  a  member  of  a  corporation,  who  is  not  its  financial  officer, 
cannot  without  authority,  make  himself  its  creditor  by  the  vol- 
untary payment  of  its  debts. ^  But  the  payment  is  not  neces- 
isarily  voluntary,  nor  is  it  to  be  treated  as  a  gift  because  the 
debtor  did  not  act  under  compulsion  in  paying  it  a  second  time 
by  mistake.* 

§  433.  Rights  of  patners  after  dissolution. — ^When  a  part- 
nership has  been  dissolved,  and  its  partnership  accounts  fully 
settled,  an  express  promise  to  pay  the  balance  is  not  necessary, 
because  the  promise  is  implied  in  closing  the  accounts  and  stat- 
ing the  balance;  and  one  partner  who  has  paid  the  partner- 
ship debts  may  maintain  an  action  against  the  other  for  con- 
tribution, although  there  has  been  no  express  promise  on  his 
part  to  pay  the  balance;^  and  this  is  true  although  he  gives 
his  individual  note  as  absolute  payment  for  a  debt  due  from 
the  partnership  to  third  parties.^ 

Of  course,  after  the  dissolution  of  the  partnership  one  part- 

1.  Winsor  v.  Savage,  9  Met.  3.  Blanchard  v.  Association,  59 
(Mass.)     348;     South    Scituate    v.       Me.  202. 

Hanover,  9  Gray  (Mass.),  420.  4.  Pool    v.    Allen,    7    Ired.     (N. 

2.  Jenkins  v.  School  Dist.,  39  Car.)  120;  Houser  v.  McGinnas,  108 
Me.    220;     Bancroft    v.    Abbott,    3        N.  Car.  631,  13  S.  E.  139. 

Allen    (Mass.),  524;  Jones  v.  Wil-  5.  Clouch  v.  Moyer,  23  Kan.  405; 

son,   3   Johns.    (N.   Y.)    434;    Rich-  Brown    v.    Agnew,    6    Watts    &    S. 

ardson   v.    Williams,    49    Me.    558;  (Pa.)    235;   Whitstone  v.  Shaw,  70 

Lewis  V.  Lewis,  3  Strobh.   (S.  Car.)  Mo.    575;     Sears    v.    Starbird,    78 

530;    Woodford  v.   Levenworth,    14  Cal.  225,  20  P.  547. 

Ind.  311.  6.  Clouch  v.  Moyer,  23  Kan.  405. 

506 


Ch.    16  IMPLIED    CONTRACTS.  §§    433,  434 

ner  cannot  revive  a  debt  barred  by  the  statute  of  limitations, 
but  during  tbe  pendency  of  the  partnership  each  partner  is  an 
agent  for  all  in  making  an  acknowledg-ment  under  the  statute 
of  limitations.^  But  no  action  lies  by  one  partner  against  an- 
other, unless  there  has  been  a  settlement  of  accounts,  and  a 
promise  to  pay  the  balance. 

§  434.  Suretyship. — There  is  no  doubt  that  contribution  may 
be  enforced  at  law  as  well  as  in  equity,  among  co-sureties,  al- 
though no  such  contract  exists.  And  it  matters  not,  in  case  of 
debt,  whether  the  sureties  are  jointly  and  severally  bound,  or 
only  severally ;  or  whether  their  suretyship  arises  under  the 
same  obligation  or  instrument,  or  under  divers  obligations  or 
instruments,  if  all  the  instruments  are  for  the  same  identical 
debt.^  Contribution  arises  upon  a  principle  of  equity,  though 
it  is  now  established  to  be  the  foundation  of  an  action  at  law.^ 
A  request  to  pay  and  a  promise  to  pay  by  a  co-surety  are  created 
by  law.^ 

It  has  been  held  that  co-sureties  must  enforce  contribution 
in  equity.*  But  this  is  not  the  law  at  the  present  time.  The 
surety  may  also  recover  the  money  paid,  for  his  principal  as 
for  money  paid  at  his  request.^ 

7.  Woods  on  Lim.  433 ;   Parsons  Tex.  644,  14  S.  W.  235 ;  Johnson  v. 

on  Part.  188.  Harvey,  84  N.  Y.  363,  38  Am.  Rep. 

1.  Story  on  Eq.  Jur.  495.  515;  Aldrich  v.  Aldrich,  56  Vt.  324, 

2.  Davies  v.  Humphreys,  6  Mees.  48  Am.  Rep.  791;  Foster  v.  Burton, 
&  W.  153.  62   Vt.   239,   20  A.    326;    Logan  v. 

3.  Deering  v.  Winchelsea,  2  Bos.  Trayser,  77  Wis.  579,  46  N.  W. 
&  P.  270;  Davies  v.  Humphreys,  6  877;  Wilton  v.  Tazwell,  86  111.  29; 
Mees.  &  W.  153;  Kemp  v.  Fender,  Fletcher  v.  Grover,  11  N.  H.  368, 
12  Mees.  &  W.  421;  Holmes  v.  Wil-  35  Am.  Dec.  497. 

liamson,  6  Maule  &  S.   158;   Bush-  4.  Longley    v.    Griggs,    10    Pick, 

nell  V.   Bushnell,   77   Wis.   435,   46  (Mass.)    121;  McDonald  v.  Magru- 

N.  W.  442,  9  L.  R.  A.  411  and  note;  der,  3  Pet.    (U.  S.)   470. 

Gibbs  V.   Bryant,   1    Pick.    (Mass.)  5.  Alexander  v.  Vane,  1  Mees.  & 

118;    Kimble  v.    Cummins,    3    Met.  Wei.  511;  Touissaint  v.  Martinant, 

(Ky.)    327;    Exall   v.   Partridge,   8  2  Term  R.  100;  Pownal  v.  Ferrand, 

Term  R.  308 ;  Clay  v.  Severance,  55  6  Barn.  &  Cr.  439 ;  Crisfield  v.  State, 

Vt.    300;    Jackson    v.    Murray,    77  55  Md.  192. 

507 


§§    435,  436  OPEEATION    OF    CONTBACTS.  Ch.    16 

§  435.  To  save  property, — ^Assumpsit  lies  for  money  paid. 
Generally,  it  is  sufficient  if  the  money  is  paid  for  a  reasonable 
cause  and  not  officiously.-^  bo  where  one  has  paid  to  relieve  a 
neighbor's  goods  from  legal  distraint  in  his  absence,  the  law 
creates  a  contract,  and  the  neighbor  must  reimburse  the  payer.^ 
So  where  one's  own  property  can  be  preserved  only  by  paying 
the  debt  of  another,  the  debtor  must  repay  the  payer.^  So,  for 
getting  the  defendant's  goods  free,  which  had  been  distrained 
by  the  landlord  for  the  defendant's  debts,  they  being  at  the  time 
on  the  tenant's  premises.^  Or  for  money  paid  to  indemnify 
the  owner  for  the  loss  of  his  goods,  which  the  plaintiff,  an 
auctioneer,  had  by  mistake  delivered  to  the  defendant,  who  had 
appropriated  them  to  his  own  use.^ 

So,  where  an  importer  has  violated  the  revenue  law,  so  as  to 
render  the  goods  liable  to  confiscation  by  the  government,  he 
will  become  liable  to  any  innocent  purchaser  of  those  goods, 
who  purchased  in  order  to  compromise  a  suit  to  confiscate  the 
goods.^ 

In  paying  money  for  the  release  of  one's  own  property,  it 
must  be  shown  that  its  seizure  was  lawful,  for  if  the  seizure  is 
unlawful,  no  liability  arises  as  to  the  debtor.'' 

§  436.  Contribution. — The  right  to  contribution  between  co- 
sureties or  joint  promisors  depends  upon  the  principle  of  equity 
rather  than  upon  contract.  It  is  well  settled  that  the  liability 
exists,  although  the  sureties  are  ignorant  of  each  other's  en- 
gagement. It  is  not  sufficient  that  both  parties  are  sureties, 
they  must  occupy  the  same  position  in  respect  to  the  principal, 

1.  Brown  v.  Hodgson,  4  Taunt.  3.  Cole  v.  Malcom,  66  N.  Y.  363; 
189;  Skillin  v.  Merrill,  16  Mass.  Exall  v.  Partridge,  8  Term  R.  308. 
40;  Jefferys  v.  Gurr,  2  Barn  &  Ad.  4.  Exall  v.  Partridge,  8  Term  R. 
833;  Pownal  v.  Ferrand,  6  Barn.  &  308. 

Cr.  439;  Exall  v.  Partridge,  8  Term  5.  Brown  v.   Hodgson,   4   Taunt. 

R.    308;    Touissaint   v.    Martinant,  189. 

2  Term  R.  100.  6.  Summers     v.     Clark,     29     La. 

2.  Jenkins   v.    Tucker,    1    H.    Bl.  Ann.  93. 


90. 


7.  Myers  v.  Smith,  27  Md.  91. 


508 


Cb.   IG 


IMPI^IiiD    CONTKACTS. 


§§  436,437 


and  without  equities  between  tbemselves,  giving  an  advantage 
to  one  over  the  otber.^ 

When  persons  are  under  legal  obligations  to  pay  a  debt  not 
in  violation  of  law,  and  one  of  them  pays  it,  the  law  creates  a 
promise  that  his  co-debtors  will  pay  him  their  proportionate 
part.^ 

§  437.  Contribution  among  wrongdoers. — Contribution  can- 
not be  enforced  among  wrongdoers.^  The  general  rule  is  that 
between  wrongdoers  there  is  neither  indemnity  nor  contribu- 
tion ;  the  exception  is  where  the  act  is  not  clearly  illegal.^ 

There  is  no  implied  obligation  to  contribute  between  wrong- 
doers, and  if  such  liability  can  be  created  by  express  promise, 
the  promise  must  rest  upon  some  other  consideration  than  the 
fact  of  the  tort  and  of  the  relation  of  the  accused  parties  to  each, 
other  in  the  wrongful  transaction.  There  must  be  some  new 
consideration,  such  as  mutual  promises,  the  transfer  of  some 
value,  the  deprivation  of  some  right  or  advantage,  or  the  like, 
which  the  law  recognizes  as  constituting  a  valid  consideration.' 
But  this  rule  applies  only  to  cases  where  there  has  been  an  inten- 
tional violation  of  law,  or  where  the  wrongdoer  is  to  be  presumed 
to  have  known  that  the  act  was  unlawful.* 


8.  Wells  V.  Miller,  66  N.  Y.  255 
Craven  v.  Freeman,  82  N.  Car.  361 
Scofield  V.  Gaskill,  60  Ga.  277 
Healey  v.  Scofield,  60  Ga.  450. 

9.  Fowler  v.  Donovan,  79  III. 
310;  Kincaid  v.  Hocker,  7  J.  J. 
Marsh.  (Ky.)  333;  Robertson  v. 
Deatherage,  82  111.  511;  Snyder  v. 
Kirtley,  35  Mo.  423;  Chipman  v. 
Morrill,  20  Cal.   130. 

1.  Boyer  v.  Bolender,  129  Pa.  St. 
324,  18  A.  127,  15  Am.  St.  Rep. 
723;  Spalding  v.  Oakes,  42  Vt.  343; 
Peck  v.  Ellis,  2  Johns.  Ch.  (N.  Y.) 
131;  Cranston  v.  Limhet,  18  Ohio, 
81,  51  Am.  Dec.  442;  Miller  v. 
Fenton,  11  Paige  (N.  Y.),  18;  Vose 


V.  Grant,  15  Mass.  505;  Hunt  v. 
Lane,  9  Ind.  248;  Merryweather  v. 
Nixan,  8  Term  R.  186;  Betts  v. 
Gibbins,  2  Ad.  &  El.  57. 

2.  Betts  V.  Gibbins,  2  Ad.  &  El. 
57,  74. 

3.  Nichols  V.  Nowling,  82  Ind. 
488. 

4.  Bailey  v.  Bussing,  28  Conn. 
455.  See,  also,  Adamson  v.  Jarvis, 
4  Bing.  66;  Wooley  v.  Batte,  2 
Car.  &  P.  417;  Pearson  v.  Skelton, 
1  Mees.  &  Wei.  504;  Acheson  v. 
Miller,  2  Ohio  St.  203.  59  Am.  Dec. 
663;  Moore  v.  Appleton,  26  Ala. 
633. 


509 


§§  437-439  opEHATioN  or  contbacts.  Cb.  16 

Contribution  will  not  be  enforced  in  favor  of  a  wrongdoer 
wbo  knew  at  tbe  time  of  tbe  commission  of  tbe  act  for  wbicb  he 
bas  been  compelled  to  respond,  tbat  sucb  act  was  wrongful.^ 

§  438.  Contribution  among  wrongdoers  —  Exceptions  to 
general  rule. — Tbe  rule  tbat  there  can  be  no  contribution  among 
wrongdoers  applies  to  cases  where  there  bas  been  an  intentional 
violation  of  law,  or  where  the  wrongdoer  is  presumed  to  have 
known  that  the  act  was  unlawful.^  Hence,  the  rule  does  not  ap- 
ply where  one  of  them  is  innocent  of  any  intentional  or  actual 
wrong,  and  has  been  compelled  to  pay  damages  which  the  other, 
who  was  the  actual  wrongdoer,  should  have  paid.' 

If  the  party  is  innocent  of  the  illegal  purpose,  ignorant  of  the 
nature  of  the  act,  which  was  apparently  correct  and  proper,  the 
general  rule  will  change  with  its  reason,  and  he  may  then  have 
a  contribution,  and  it  can  be  enforced  by  action  if  refused,  whe- 
ther the  person  seeking  it  has  been  subjected,  in  case  or  assump- 
sit, to  the  damages  of  which  he  complains.^ 

§  439.  Indemnity. — The  general  rule  is  that  between  wron- 
doers  there  is  neither  indemnity  or  contribution.  The  exception 
is  where  the  act  is  clearly  not  illegal  in  itself.^  There  may  be 
an  indemnity  between  wrongdoers  unless  it  appears  that  they 
have  been  jointly  concerned  in  a  transaction  which  the  party 
complaining  knew  to  be  illegal.^"     The  general  rule  does  not 

5.  Johnson  v.  Torpy,  35  Neb.  604,  Light  Co.,  114  Mass.  149,  19  Am. 
53  N.  W.  575,  37  Am.  St.  Rep.  447 ;  Rep.  324;  Churchill  v.  Holt,  127 
Torpy  V.  Johnson,  43  Neb.  882,  62        Mass.  165,  34  Am.  Rep.  355. 

N.  W.  253.  7.  Bailey   v.    Bussing,    28    Conn. 

6.  Farwell  v.  Becker,  129  111.  261,  455;  Port  Jervis  v.  Bank,  96  N.  Y. 
21  N.  E.  792,  6  L.  R.  A.  400,  16  Am.  550;  Farwell  v.  Becker,  129  111. 
St.  Rep.  267;  Armstrong  Co.  v.  261,  21  N.  E.  792,  6  L.  R.  A.  400, 
Clanen  Co.,  66  Pa.   St.  218,  5  Am.  16  Am.  St.  Rep.  267. 

Rep.    368;     Bailey    v.    Bussing,    28  8.  Bailey    v.    Bussing,    28    Conn. 

Conn.    455;    Jacobs   v.    Pollard,    10  455. 

Cush.     (Mass.)    287,    57    Am.    Dec.  9.  Betts  v.  Gibbins,  2  Ad.  &  El. 

105;   Betts  v.  Gibbins,  2  Ad.  &  El.  57. 

57;    Acheson  v.   Miller,   2   Ohio   St.  10.  Batterse/s   Case,   Winch,   48.  . 

203,  59  Am.  Dec.  663 ;  Gray  v.  Gas 

510 


Cll.    IG  IMPLIED   CONTRACTS.  §§    439-442 

affect  cases  of  indemnity,  wiiere  one  man  employs  another  to 
do  acts,  not  unlawful  in  themselves,  for  the  purpose  of  asserting 
a  right." 

§  440.  Fraud. — ^Where  a  party  has  fraudulently  caused  dam- 
age to  another  he  is  responsible.  So  a  party  must  make  good 
any  loss  or  damage  which,  by  his  act  or  omission  or  legal  de- 
fault, has  been  occasioned  to  another.^  And  so  where  one  has 
been  compelled  to  pay  money  to  a  third  party  by  the  fraud  of 
another,  the  wrongdoer  is  liable  to  him  for  money  thus  paid.^^ 

Where  money  has  been  obtained  by  fraud  or  deceit,  the  law 
implies  a  promise  by  the  wrongful  doer  to  restore  it.^'* 

§  441.  Payment. — Before  the  law  creates  an  implied  con- 
tract there  must  be  a  payment  by  the  party  complaining.  Pay- 
ment of  a  money  debt  as  surety  or  indorser  by  conveying  land, 
which  is  received  as  payment,  is  sufficient  to  give  rise  to  con- 
tribution.-^ The  giving  of  a  promissory  note  may,  in  some  cases, 
be  equivalent  to  the  payment  of  money;  but  the  giving  of  a 
bond  is  not  such  a  payment.^  If  a  note  is  received  as  an  abso- 
lute payment  of  the  debt,  that  is  sufficient  though  it  has  not 
been  paid.^ 

§  442.  Express  contract. — There  can  be  no  implied  contract 
between  parties  so  long  as  there  is  a  written  contract  covering 
the  same  thing;  for  there  can  be  but  one  contract  at  the  same 
time  between  the  same  parties  touching  the  same  subject  mat- 

11.  Merryweather  v.  Nivan,  8  40  W.  Va.  385,  22  S.  E.  73;  Bull  v. 
Term  R.  186.  Quincey,  52  111.  App.  186. 

12.  Moule    V.    Garrett,    L.    R.    7 

Exch.  101.  1.  Ainslie  v.  Wilson,  7  Ck)w.   (N. 

13.  Van  Santen  v.  Oil  Co.,  81  N.  Y.)  662,  17  Am.  Dec.  532;  Randall 
Y.  171;  Bleaden  v.  Charles,  7  Bing.        v.  Rich,  11  Mass.  494. 

246.  2.  Taylor    v.    Higgins,    3    East, 

14.  Garber  v.  Arraentrout,  32  169;  Gumming  v.  Fisher,  8  Johns. 
Gratt.    (Va.)   235;   Bliss  v.  Thomp-        (N.  Y.)   202. 

son,  4  Mass.  488;  Lyon  v.  Annable.  3.  Clouch    v.    Moyer,    23    Kans. 

4    Conn.    350;    Robinson    v.    Welly,        404. 

511 


§§    442,  443  OPERATION    OF    CONTRACTS.  Ch.    16 

ter;  and  if  a  written  contract  exists  it  takes  precedence  of  all 
others,  and  forms  the  only  contract  between  the  parties  during 
the  time  of  its  existence.^  As  the  law  has  prescribed  different 
forms  of  action  on  different  securities,  assumpsit  cannot  be 
supported  where  there  has  been  an  express  promise  under  seal 
or  of  record ;  but  the  party  must  proceed  in  debt  or  covenant 
where  the  contract  is  under  seal.^  So  long  as  the  express  con- 
tract remains  in  force,  the  party  cannot  abandon  it  and  re- 
cover on  an  implied  one.  Where  an  express  contract  is  shown, 
it  follows  as  one  of  the  fundamental  principles  of  the  law  that 
none  can  be  implied.^  But  this  rule  has  been  qualified.  If 
the  express  contract  is  not  under  seal,  and  embraces  only  what 
the  law  would  imply,  a  party  may  sue  on  it  or  on  the  implied 
contract  at  his  election.* 

§  443.  Void  contract. — A  void  contract  is  no  contract  at  all ; 
and  if  money  is  paid  on  such  contract,  it  is  paid  without  con- 
sideration either  good  or  valuable  and  may  be  recovered  back, 
unless  the  contract  is  of  such  a  character  that  the  law  will  not 
aid  either  party.^  And  if  it  is  void  for  one  party  it  is  void  for 
the  other,  and  the  defendant  cannot  set  it  up  as  a  defense  and 
discharge  of  a  debt  honestly  due  the  plaintiff.  If  the  express 
contract  fails  on  account  of  being  void,  the  complaining  party 
may  recover  pay  on  a  contract  created  by  law.^ 

1.  Tietz  V.  Tietz,  90  Wis.  66,  62  L.  494.  See,  also,  Walker  v. 
N.  W.  339;  Barry  v.  Ryan,  4  Gray  Brown,  28  111.  378,  81  Am.  Dec.  287; 
(Mass.),  523;  North  v.  Nichols,  37  Dermott  v.  Jones,  2  Wall.  (U.  S.) 
Conn.  375;  Spencer  v.  Parry,  3  1;  Western  v.  Sharp,  14  B.  Mon. 
Adol.  &  El.  331;  Lubbock  v.  Tribe,  (Ky.)    177. 

3  Mees.  &  Wei.  607.  4.  Gibbs     v.      Bryant,      1     Pick. 

2.  Chitty    on    Plead.      98,     344;  (Mass.)    118;   Princeton,  etc.  Turn- 
Brewer   V.   Dyer,   7    Gush.    (Mass.)  pike  Co.  v.  Gulick,  16  N.  J.  L.  161. 
337;    Colman  v.  Jenkins,   14  Mass.  5.  Gist  v.  Smith,  78  Ky.  367. 
93.  6.  Thurston   v.   Percival,   1   Pick. 

3.  Holden  Steam  Mill  Co.  V.  Wes-  (Mass.)  415;  Morier  v.  Morj^an, 
tervelt,  67  Me.  446 ;  Touissaint  v.  58  111.  App.  235 ;  Holbrook  v.  Clapp, 
Martinant,  2  Term  R.  100;  Dra-  105  Mass.  563,  43  N.  E.  508;  Dow- 
per  V.  Randolph,  4  Harr.  (Del.)  ling  v.  McKenny,  124  Mass.  478; 
454;   Voorhees  v.   Combs,  33  N.  J.  Duquette  v.  Richar,  102  Mich.  483, 

512 


Ch.    16  IMPLIED   CONTRACTS.  §§    444, 445 

§  444.  Difference  between  express  and  implied  contracts. — 

The  difference  between  express  and  implied  contracts  is  merely 
a  difference  in  the  mode  of  proof;'  and  at  common  law,  in 
pleading  the  form  of  action  for  an  implied  contract  is  assump- 
sit.^ Implied  contracts  are  alleged  in  the  declaration,  the 
same  as  express  ones,^  and  a  consideration  is  alleged.*  The 
statutes  may  now  control  this  mode  of  pleading. 


ARTICLE  III. 
Receiving  Money  fob  the  Use  of  Anothee. 

Section  445.  Eeceiving  Money  which  Belongs  to  Another. 

446.  Receiving  Property. 

447.  Illegal   Contracts. 

448.  Want  of  Consideration — Recovering  Back  Money  Paid. 

449.  Voluntary  Payment  with  Knowledge  of  all  the  Facts. 

450.  Payment  Under  Mistake  of  Fact. 

451.  Agent  of  Both  Seller  and  Purchaser — Pajnnent  of  Commis- 

sion. 

452.  Mistake  of  Law. 

453.  Mistake  of  Law  in  Equity. 

454.  Compromise. 

455.  Duress. 

456.  Payment  of  Taxes  and  Assessments. 

§  445.  Receiving  money  which  belongs  to  another. — If  one 

man  hat  obtained  money  from  another,  tlirough  the  medium  of 
oppression,  imposition,  extortion  or  deceit,  such  money  is,  in 
contemplation  of  law,  money  received  for  the  use  of  the  in- 

60  N  W.   974 ;   Hart  v.  Maney,   12  2.   1  Chitty  on  Plead.  302 ;   :\Ion- 

VVash.    266.   40   P.    987;.Pracht   v.  son   v.   Williams,   6   Gray    (Mass.), 

Daniels,   20   Colo.    100,    36    P.    845.  416;    Pawlet   v.    Sandgate,    19    Vt. 

See,    also,    Lytle    v.    Bowden,    107  621;   Downing  v.  Freeman,  13  Me. 

Ala.  361,  18  So.  130;  Burton  Lum.  90. 

Co.  V.  Wilder,  108  Ala.  669,  18  So.  3.  Bailey    v.    Bussing,    28    Conn. 

552.  1.  455,  21  Conn.  1. 

1.  Church  V.   Coke  Co.,  6  Ad.  &  4.  Wingo    v.     Brown,     12     Rich. 

El.  846.  (S.  Car.)   L.  279. 

513 


§  445 


OPERATION    OF    CONTRACTS. 


Ch.  16 


jured  party,  which  can  be  recovered  back.^  And  so,  when 
money  is  received  as  a  gift  from  a  person  of  unsound  mind, 
the  law  implies  that  it  is  held  by  the  donee  for  the  use  of  the 
donor.^ 

If  property  or  anything  else  be  received  as  the  equivalent 
of  money,  by  one  who  assumes  to  cancel  or  dispose  of  a  prop- 
erty right,  for  which,  by  contract,  or  liability,  legal  or  equitable, 
it  is  his  duty  to  account  to  another,  the  latter  may  treat  the 
transaction  as  a  receipt  of  money,  and  sue  for  it  as  such,  in 
assumpsit.^ 

Privity  of  estate  is  created  where  the  defendant  has  received 
money  belonging  to  the  plaintiff,  which  in  equity  and  good  con- 
science he  ought  to  repay.^  Thus,  when  a  party  sells  land  not 
belonging  to  him  and  receives  the  money,  he  becomes  at  once 
liable  to  the  vendee  for  the  money  thus  paid.^  So  a  party 
selling  land  which  is  owned  jointly  by  himself  and  another, 
the  latter  can  recover  his  share  from  the  former.^ 


1.  McQueen  v.  Bank,  2  Ind.  413; 
Moore  v.  Shields,  121  Ind.  267,  23 
N.  E.  89;  Bullaid  v.  Hascall,  25 
Mich.  132;  Mason  v.  Waite,  17 
Mass.  560. 

2.  Teegarder  v.  Lewis,  145  Ind. 
98,  40  N.  E.  1047,  44  N.  E.  9.  See, 
also.  Walker  v.  Conant,  65  Mich. 
794,  31  K  W.  786;  People  v.  Speir, 
77  N.  Y.  144. 

3.  Stewart  v.  Connor,  9  Ala.  803 ; 
Cameron  v.  Clark,  8  Ala.  259; 
Strickland  v.  Burns,  14  Ala.  511: 
Thompson  v.  Thompson,  5  W.  Va. 
190;  Jackson  v.  Hough.  38  W.  Va. 
236,  18  8.  E.  575;  Vrooman  v.  Mc- 
Kaig,  4  Md.  450,  59  Am.  Dec.  85; 
Lawson  v.  Lawson,  16  Gratt.  (Va.) 
230,  80  Am.  Dec.  7"02;  Merchants' 
Bank  v.  Rawls,  7  Ga.  191,  50  Am. 
Dec.  394;  Boyett  v.  Potter,  80  Ala. 
476,  2  So.  1534;  Barnett  v.  Warren, 
82  Ala.  557,  2  So.  457;  Glasscock 
V.  Lyons,  20  Ind.  1,  83  Am.  Dec. 
299;    O'Fallon   v.   Boismenn,   3  Mo. 

•    514 


405,  26  Am.  Dec.  678;  O'Conley  v. 
Natches,  1  Sm.  &  M.  (Miss.)  31, 
40  Am.  Dec.  87 ;  Barnes  v.  Johnson, 
84  111.  95;  Chemical  Nat.  Bank  v. 
Bank,  156  111.  149,  41  N.  E.  225. 

4.  Walker  v.  Conant,  65  Mich. 
194,  31  N.  W.  786;  Drake  v.  Whaley, 
35  S.  Car.  187,  14  S.  E.  397;  Com.' 
pare  Sergeant  v.  Stryker,  16  N.  J. 
L.  464,  32  Am.  Dec.  404. 

5.  Pevey  v.  Jones,  71  Miss.  647, 
16  So.  252,  42  Am.  St.  Rep.  486. 
See,  also,  Birmingham  Lumber  Co. 
V.  Brinson,  94  Ga.  517,  20  S.  E. 
437;  Paul  v.  Grimm,  165  Pa.  St. 
451,  30  A.  721. 

6.  Gottschalk  v.  Smith,  156  111. 
377,  40  N,  E.  937.  See,  also,  Zang 
Brewing  Co.  v.  Bernheim,  7  Colo. 
App.  528,  44  P.  380;  Brand  v.  Wil- 
liams, 29  Minn.  238,  13  N.  42; 
Haebler  v.  Myers,  132  N.  Y.  363,  30 
N.  E.  963,  15  L.  R.  A.  588;  Clark 
V.  Pinney,  6  Cow.  (N.  Y.)  297. 


Ch.     IG  I.MIM.IKD    CO.NTKACTS.  §    446 

§  446.  Receiving  property. — An  action  to  recover  for  money 
paid,  or  had  and  received,  will  not  generally  lie  except  upon 
the  payment  of  maney.^  But  if  property,  or  anything  else,  be 
received  as  the  equivalent  of  money,  by  a  person  who  has  as- 
sumed to  cancel  or  dispose  of  a  property  right,  for  which  he 
is  liable  legally  or  equitably,  to  account  to  another,  the  latter 
may  treat  the  transaction  as  a  receipt  of  money,  and  sue  for 
money  had  and  received.^ 

The  action  may  lie  when  the  equivalent  of  money  has  been 
actually  accepted  as  money,  by  the  party  receiving  it,  as  where 
an  agent  has  discharged  his  principal's  debt  by  applying  there- 
on a  debt  owing  by  himself  f  or  w^here  a  surety  has  transferred 
property  to  the  creditor,  who  received  it  in  payment  of  a  judg- 
ment/ 

But  where  property  has  been  received  by  the  defendant, 
but  has  not  been  converted  into  money,  and  is  not  received  as 
an  equivalent  of  money,  there  is  no  implied  contract  for  money 
had  and  received  f  but  so  soon  as  the  property  has  been  sold 
and  converted  to  the  defendant's  use,  then  it  can  be  recovered 
as  money  had  and  received;^  or  has  had  the  property  so  long 
that  a  presumption  of  its  sale  arises.' 

It  has  been  held  that  no  action  for  money  had  and  received 
w'ill  lie,  if  the  amount  of  the  property  cannot  be  ascertained 

1.  National  Trust  Co.  v.  Gleason,  5.  Moody  v.  Walker,  89  Ala.  619, 
77  N.  Y,  400,  33  Am.  Rep.  632  and  7  So.  246 ;  Tuttle  v.  Campbell,  74 
note;  Gumming  V.  Hackley,  8  Johns.  Mich.  652,  42  N.  W.  384,  16  Am. 
(N.  y.)  202;  Moyer  v.  Shoemaker,  St.  Rep.  652  and  note;  Stearns  v. 
5  Barb.   (N.  Y.)  319.  Dillingham,    22    Vt.    624,    54    Am. 

2.  Barnett  v.  Warren,  82  Ala.  Dee.  88;  Hendricks  v.  Goodrich,  15 
657,  2  So.  457;  Brundage  v.  Port-  Wis.  679;  Thurston  v.  Mills,  16 
Chester,  102  N.  Y.  494,  7  N.  E.  398 ;  East,  254. 

Balch  V.  Patten,  45  Me.  41,  71  Am.  6.  Staat  v.    Evans,   35   111.    455; 

Dec.  526;  Libby  v.  Robinson,  79  Me.  Comstock  v.  Hier,  73  N.  Y.  269,  29 

168,   9   A.    24;    Atkins   v.    Owen,   4  Am.  Rep.   142;   Gilmore  v.  Wilbur, 

Adol.  &  El.  819;   Lee  v.  Merritt.  8  12  Pick.    (Mass.)    120,  22  Am.  Dec. 

Q.  B.  820.  410;  Olive  v.  Olive,  95  N.  Car.  485. 

3.  Beardsley  v.  Root,  11  Johns.  7.  Moody  v.  Walker,  89  Ala.  619, 
( X.  Y. )  464,  6  Am.  Dec.  386.  7  So.  246. 

4.  Bonney  v.  Seely,  2  Wend.    (N. 
Y.)   481. 

515 


§§    446-448  OPERATION    OF    CONTRACTS.  Ch.    16 

though  sold  f   or  if  the  property  has  been  exchanged  for  other 
property;®   or  if  the  money  or  an  equivalent  is  not  received.^" 

§  447.  Illegal  contract. — The  principle  of  law  is  ex  dolo  malo 
oritur  actio — a  right  of  action  cannot  arise  out  of  fraud.  So 
no  court  will  lend  its  aid  to  a  man  who  founds  his  cause  of 
action  upon  an  immoral  or  illegal  action. ^^  Hence,  where  a 
party  has  knowingly  paid  money  under  an  illegal  or  immoral 
contract,  he  cannot  recover  it  back.^^ 

And,  so,  if  a  man  loans  money  with  the  intention  and  un- 
derstanding on  his  part  that  it  is  to  be  used  for  an  illegal  pur- 
pose, and  it  is  so  used,  he  cannot  recover  it  back  from  the  bor- 
rower; he  must  loan  his  money  for  the  express  purpose  of 
promoting  the  illegal  design  of  the  borrower. ^^ 

§  448.  Want  of  consideration  —  Recovering  back  money 
paid. — Wherever  a  contract  is  rescinded  according  to  the  orig- 
inal terms  of  it,  the  purchaser  may  well  recover  the  price  as 
money  had  and  received  to  his  use.^  So  where  a  contract  is 
defeated  by  the  negligence  or  misconduct  of  one  party,  the 
other  may  have  his  election  to  rescind  the  contract  and  recover 

8.  Saville  v.  Welch,  58  Vt.  683,  Met.  (Mass.)  207:  Banchor  v.  Man- 
5  A.  491;  Glascock  v.  Hazell,  109  sel,  47  Me.  58;  Cannan  v.  Bryee,  3 
N.  Car.  457,  13  S.  E.  789.  Barn.    &    Aid.    179;    McKinnell    v. 

9.  Fuller  v.  Duven,  36  Ala.  73,  Robinson,  3  Mees.  &  Wei.  434; 
76  Am.  Dec.  318;  Kidney  v.  Persons,  Tracy  v.  Talmage,  14  N.  Y.  162,  67 
41  Vt.  386,  98  Am.  Dec.  595.  Am.  Dec.  132  and  note. 

10.  Budd  V.  Hiler,  27  N.  J.  L.  1.  Towers  v.  Barrett,  1  Term  R. 
43.  133;   Giles    .'.  Edwards,  7   Term  R. 

11.  Holman  v.  Johnson,  1  Cowp.  181;  Devaux  v.  Conolly,  8  C.  B. 
341.  640;     Earl     v.     Bickford,    6    Allen 

12.  Gaylord  v.  Soragen,  32  Vt.  (Mass.),  549,  83  Am.  Dee.  651; 
110,  76  Am.  Dec.  154;  Hili  v.  Spear,  Johnson  v.  Jennings,  10  Gratt. 
50  N.  H.  253,  9  Am.  Rep.  205.  (Va.)    1,  60  Am.  Dec.  323;   Claflin 

13.  Tyler  V.  Carlisle,  79  Me.  210,  v.  Godfrey,  21  Pick.  (Mass.)  1; 
2  A.  845,  1  Am.  St.  Rep.  :301  and  Cripps  v.  Reade,  6  Term  R.  606; 
note;  Green  v.  Collins,  3  Cliff  C.  C.  Wright  v.  Dickenson,  67  Mich.  580, 
494;  Peck  v.  Briggs,  3  Denio  (N.  42  N.  W.  849,  11  Am.  St.  Rep.  602; 
Y.),    107;    Mclntyre    v.    Parks.    3  Sthwinger  v.  Hickok,  53  N.  Y.  280. 

516 


Ch.    16  IMPLIED    CONTEACTS.  §    448 

back  the  purchase-money,  or  to  enforce  it,  and  recover  dam- 
ages for  its  breach.^ 

And  if  a  person  sells  bills,  notes  and  other  paper,  which 
turn  out  to  be  forgeries,  or  for  other  causes  are  of  no  value, 
the  purchaser  can  bring  an  action  to  recover  back  the  purchase- 
money  f  so  if  a  person  sells  land  but  conveys  no  title,  money 
paid  can  be  recovered  back  as  money  had  and  received.* 

But  if  a  party  rescind  a  contract,  he  must  do  it  in  toto. 
He  cannot  disclaim  it  in  part  and  enforce  it  in  part.  So,  also, 
the  party  rescinding  must  place  the  other  party  in  statu  quo. 
If  this  cannot  be  done,  the  contract  cannot  be  rescinded.  Hence, 
if  the  contract  be  in  any  part  executed,  it  cannot  be  discarded,^ 
and  the  injured  party,  if  he  has  a  remedy,  must  sue  for  breach 
of  the  contractt.® 

Therefore,  when  several  chattels  are  sold  in  gross,  for  one 
sum,  which  is  paid  by  the  purchaser,  and  part  of  them  are 
delivered,  but  the  seller  refuses  to  deliver  the  remainder,  the 
purchaser  cannot,  if  he  retains  those  already  delivered,  recover 
back  any  portion  of  the  purchase-money,  in  an  action  for 
money  paid,  or  money  had  and  received,  and  his  remedy  is 
upon  the  special  contract  for  damages.^ 

But  where  the  contract  embraces  two  or  more  subjects,  the 
performance  of  one  of  them  does  not  supersede  the  agTeement 

2.  Giles  V.  Edwards,  7  Term  R.  502,  3  Am.  Dee.  230;  Conner  v. 
181.  Henderson,    15    Mass.    319,    8    Am. 

3.  Wood  V.  Sheldon,  42  N.  J.  L.  Dec.  103;  Rand  v.  Webber,  64  Me. 
421,  56  Am.  Rep.  523;  Watson  v.  191;  Clark  v.  Baker,  5  Met.  (Mass.) 
Cresap,  1  B.  Mon.  (Ky.)  195,  36  452;  Morse  v.  Brackett,  98  Mass, 
Am.  Dec.  572;  Ripley  v.  Case,  86  205;  Johnson  v.  Johnson,  3  Bos.  & 
Mich.  261,  49  N.  W.  45;  Moore  v.  Pul.  162;  Way  v.  Cutting,  17  N.  H. 
Garwood,  4  Exch.  681;  Burchf.eld  450;  Bassett  v.  Percival,  5  Allen 
V.  Moore,  3  El.  &  Bl.  683;   Gurney  (Mass.),   345. 

V.  Womersley,  4  El.  &  Bl.  133;  Wes-  6.  Blackburn  v.   Smith,   2   Exch. 

tropp  V.  Solomon,  8  C.  B.  345.  783;    Swart  v.  Gale,   62   N.   H.   62. 

4.  Schwinger  v.  Hickok,  53  K  7.  Miner  v.  Bradley,  22  Pick. 
Y.  280;  Earle  v.  Bickford,  6  Allen  (Mass.)    457;   Johnson  v.  Johnson, 

(Mass.),  549,  18  Am.  Dec.  651.  3  Bos.  &  Pul.  162.    See,  also,  Gom- 

5.  Hunt  V.  Sick,  5  East,  449;  pertz  v.  Denton.  1  Cromp.  «£  M. 
Kimball    v.    Cunningham,    4    Mass.        207. 

517 


;§  448,449 


OPERATION    OF    CONTRACTS. 


Ch.   16 


as  to  the  others.      If  the  consideration  is  severable,  the  part 
failing  may  be  recovered  back  as  money  had  and  received.^ 

The  party  causing  the  failure  of  consideration  by  his  own 
default,  cannot  recover  the  money  paid  f  and  where  he  buys 
property  at  his  own  risk  and  pays  accordingly,  he  cannot  re- 
cover if  it  does  not  prove  of  any  value  ;^**  if  the  purchaser 
receives  what  he  bargains  for,  he  has  no  cause  of  complaint. ■^^ 


§  449.  Voluntary  payment  with  knowledge  of  all  the  facts. 
— ^A  voluntary  payment,  made  with  full  knowledge  of  all  the 
facts  and  circumstances  of  the  case,  though  made  under  a 
mistaken  view  of  the  law,  cannot  be  revoked,  and  the  money 
so  paid  cannot  be  recovered  back.^^  This  rule  rests  upon  the 
general  principle  of  public  convenience  and  applies  to  a  cor- 
portation  as  well  as  to  a  natural  person. ^^ 

And,  so,  when  one  voluntarily  pays  a  void  contract  with  knowl- 


8.  Laflin  v.  Howe,  112  111.  253; 
Miner  v.  Bradley,  22  Pick.  (Mass.) 
457;  Goodspeed  v.  Fuller,  46  Me. 
141;  Johnson  v.  Johnson,  3  Bas.  & 
Pul.  162;  Devaux  v.  Conolly,  8  C. 
B.  640. 

9.  Stray  v.  Russell,  1  El.  &  El. 
888. 

10.  Lambert  v.  Heath,  15  Mees. 
&  Wei.  486;  Morley  v.  Attenber- 
ough,  3  Exch.  500;  Westlake  v. 
Adams,  5  C.  B.,  N.  S.  2G6. 

11.  Taylor  v.  Hare,  1  Bos.  &. 
Pul.,  K  R.  260 ;  Westlake  v.  Adams, 
5  C.  B.,  N.  S.  266. 

12.  Clark  v.  Butcher,  9  Cow.  (N, 
Y.)  674;  Ege  v.  Koontz,  8  Pa.  St. 
109;  Boston,  etc.  Co.  v.  Boston,  4 
Met.  (Mass.)  181;  Benson  v.  Mon- 
roe, 7  Ctish.  (Mass.)  125,  54  Am. 
Dec.  116;  Melins  v.  Duncan,  6 
Barn.  &  Cr.  671;  Stewart  v.  Stew- 
art, 6  CI.  &  Fin.  911;  Lamborn  v. 
Commissioners,  97  U.  S.  181;  Car- 
son   V.    Cocl'.van,    52    Minn.    67,    53 


N.  W.  1130;  Bryson  v.  Home,  168 
Pa.  St.  352,  31  A.  1008;  Armstrong 
V.  Latimer,  165  Pa.  St.  398,  30  A. 
990;  Hickman  v.  Eggmann,  53  111. 
App.  561;  Garretson  v.  Joseph,  100 
Ala.  279,  13  So.  948;  Wessel  v. 
Land  Co.,  3  N".  Dak.  160,  54  N.  W. 
922;  Evans  v.  Hughes,  3  S.  Dak. 
244,  52  N.  W.  1062 ;  Vanderback  v. 
Ilocliester,  122  N.  Y.  285,  25  N.  E. 
408;  Wayne  County  v.  Randall,  43 
Mich.  137,  5  N.  75;  Valley  Rail- 
road Co.  V.  Iron  Co.,  46  Ohio  St. 
44,  18  N.  E.  486,  1  L.  R.  A.  412; 
Christy  v.  Sullivan,  50  Cal.  337,  19 
Am.  Rep.  655;  Mutual  Sav.  Inst. 
V.  Enslin,  46  Mo.  200;  Trigg  v. 
Read,  5  Humph.  (Tenn.)  529; 
Beard  v.  Beard,  25  W.  Va.  486,  52 
Am.  Rep.  219;  Snelson  v.  State,  16 
Ind.  29. 

13.  Valley  Railroad  Co.  v.  Iron 
Co.,  46  Ohio  St.  44,  18  N.  E.  4;-!6,  1 
L.  R.  A.  412. 


518 


Cb.     IG  IMPLIED    CONTRACTS.  §§    449,450 

edge  of  the  facts  rendering  it  void,  lie  cannot  recover  back  the 
money  paid."  So  if  a  party  voluntarily,  and  witboiit  mistake 
of  fact,  pays  as  interest  a  greater  amount  than  is  legally  en- 
forceable, but  not  usurious,  the  appropriation  thus  made  by  the 
parties  will  not  be  disturbed,  but  will  stand  as  a  voluntary 
payment. ^^ 

§  450.  Payment  under  mistake  of  fact. — The  general  rule  is 
tliat  where  a  person  makes  a  payment  to  another  under  such  a 
mistake  as  to  material  facts  as  to  create  a  belief  in  the  existence 
of  a  liability  to  pay,  which  does  not  really  exist,  he  can  recover 
it  back  as  money  had  and  received  for  his  use.^ 

But  money  paid  under  a  mistake  of  facts  cannot  be  re- 
claimed where  the  party  paying  it  has  derived  a  substantial 
benefit  from  the  payment;  nor  where  the  party  to  whom  paid 
received  it  in  good  faith  in  satisfaction  of  an  equitable  claim, 
nor  where  it  was  due  in  honor  and  conscience.  The  right  to 
remedy  in  such  cases  turns  upon  the  question  as  to  whether  the 
party  receiving  the  money  paid  by  mistake  can  in  good  faith 
retain  it.^ 

Money  paid  under  a  mistake  of  fact  to  which  the  plaintiff's 
negligence  has  in  no  way  contributed,  may  be  recovered  back 
by  him,^  and  it  is  no  defense  to  an  action  brought  to  recover  it 

14.  Powell  V.  Supervisors,  46  Wis.  455;  Glenn  v.  Shannon,  12  S.  Car. 
210,  50  N.  W.  1013;  Mayor  v.  Lef-  570;  Hazard  v.  Ins.  Co.,  7  R.  I. 
fernan,  4  Gill  (Md.)  425,  45  Am.  429;  Citizens'  Bank  v.  Grafflin,  31 
Dec.  145  and  note;  Babcock  v.  Fond  Md.  507,  100  Am.  Dec.  60;  McDon- 
du  Lac,   58   Wis.   230,    16   N.   625;  aid  v.  Lj-neh,  59  Mo.  350. 

Irvine  v.  Hanlin,  10  Serg.  &  R.  2.  Norton  v.  Marden,  15  Me.  45, 
(Pa.)  219;  Mills  v.  McDaniels,  59  32  Am.  Dec.  132;  Moore  v.  Ed- 
Mo.   App.   331.  dowes,   2   Ad.  &  El.    133;   Glenn   v. 

15.  Carson  v.  Cochran,'  52  Minn.  Shannon,  12  S.  Car.  570;  Foster  v. 
67,  53  N.  W.  1130.  See,  also,  Holt  Kirby,  31  Mo.  496;  Brisbane  v. 
V.  Thomas,  105  Cal.  273,  38  P.  891;  Dacres,  5  Taunt.  143,  163;  Farmer 
Richey  v.  Clark,  11  Utah,  467,  40  v.  Arundel,  2  W.  Bl.  824;  Pensa- 
P.  717;  Edwards  v.  Hardware  cola,  etc.  R.  R.  Co.  v.  Braxton,  34 
Manuf.    Co.,    59    Minn.    178,    60    N.  Fla.  471. 

W.   1097.  3.  Blancliard  v.  Ix)w,    164  Mass. 

1.  Mayor  v.  New  York,  63  N.  Y.        118,  41  N.  E.  118. 


.19 


450 


OPERATION    OF    CONTRACTS. 


Oh.   16 


that  the  mistake  arose  through  the  plaintiff's  negligence,  if 
such  negligence  caused  the  defendant  no  harm.*  And  in  gen- 
eral, to  defeat  an  action  for  money  voluntarily  paid  under  a 
mistake  of  fact,  it  is  not  sufficient  that  the  plaintiff  might  have 
known  the  facts  had  he  availed  himself  of  the  means  of  infor- 
mation possessed  by  him,^  provided  the  defendant  has  not 
changed  his  position  so  that  he  cannot  be  placed  in  statu  quo.^ 

But  if  the  money  is  paid  with  the  intention  that  the  person 
receiving  shall  have  the  money  at  all  events,  irrespective  of 
the  facts,  it  cannot  be  recovered  back  ;^  or  if  he  has  recovered 
that  for  which  he  bargained.  And  so  a  bank  can  recover  back 
from  the  payee  of  a  check,  the  amount  above  the  depositor's 
credit,  when  the  bank  supposed  the  depositor  had  sufficient 
funds  in  the  bank  to  pay  the  check  in  fuU.^ 

Money  paid  to  a  bank  by  the  indorser  of  an  instrument, 
which  has  been  discounted  by  the  bank,  and  which  both  sup- 
posed erroneously  was  a  negotiable  promissory  note,  cannot  be 
recovered  back.^ 


4.  Appleton  Bank  v.  McGilvrey, 
4  Gray  (Mass.),  518,  64  Am.  Dec. 
92;  Kingston  Bank  v.  Ettinger,  40 
N.  Y.  391,   100  Am.  Dec.  516. 

5.  Kelly  v.  Solari,  9  Mees.  & 
Wei.  54;  Bell  v.  Gardiner,  4  Mann. 
&  Gr.  11;  Franker  v.  Little,  24 
Kan.  598,  36  Am.  Rep.  262;  Waite 
V.  Leggett.  8  Coav.  (N.  Y.)  195,  18 
Am.  Dec.  441;  Wheadon  v.  Olds,  20 
Wend.  (N.  Y.)  174;  Devine  v.  Ed- 
wards, 87  111.  177;  Alston  v.  Rich- 
ardson, 51  Tex.  1;  Lyle  v.  Shinne- 
barger,  17  Mo.  App.  74;  Dobson  v. 
Winner.  26  Mo.  App.  329;  Mc- 
Cracken  v.  San  Francisco,  16  Cal. 
591 ;  Douglas  County  v.  Keller,  43 
Nebr.  635,  62  N.  W.  60 ;  Rutherford 
V.  Mclvor,  21  Ala.  750;  Koontz  v. 
Bank,  51  Mo.  275;  Walker  v.  Co- 
nant,  65  Mich.   194,  31  N.  W.  780; 


Lawrence  v.  Bank,  54  N.  Y.  432; 
Brown  v.  Road  Co.,  56  Ind.  110; 
Compare  Wilson  v.  Barker,  50  Me. 
447;  Brummitt  v.  McGuire,  107  N. 
Car.  351,  12  S.  E.  191. 

6.  Walker  v.  Conant,  65  Mich. 
194,  31  N.  W.  786. 

7.  Troy  v.  Bland,  58  Ala.  197; 
Kelly  V.  Solari,  9  Mees.  &  Wei.  54; 
Buffalo  V.  O'Malley,  61  Wis.  255, 
20  N.  913,  50  Am.  Rep.  137  and 
note;  McArthur  v.  Luce,  43  Mich. 
435,  5  N.  451,  38  Am.  Rep.  204; 
Bergenthal  v.  Fiebrantz,  48  Wis. 
435.  4  N.  89. 

8.  Merchants'  Nat.  Bank  v.  Bank, 
139  Mass.  513,  2  N.  E.  89. 

9.  Alton  V.  Bank,  157  Mass.  341, 
32  N.  E.  228,  18  L.  R.  A.  144,  34 
Am.  St.  Rep.  285. 


520 


Ch.     10  IMPLIED    CONTRACTS.  §§    451,  452 

§  451.  Agent  of  both  seller  and  purchaser  —  Payment  of 
commissions. — One  cannot  act  as  agent  for  both  seller  and  pur- 
chaser, unless  both  principals  know  of  and  assent  to  his  un- 
dertaking such  agency  and  receiving  commissions  from  both.^" 
And  so  money  paid  by  a  principal  to  his  agent  for  the  latter's 
services  in  the  sale  of  property  may  be  recovered  back,  in  an 
action  at  law,  when  it  appears  that  such  agent  has  received  or 
was  to  receive  a  commission  from  the  other  party  to  the  trade  or 
sale  for  similar  services,  if  it  also  appears  that  at  the  time  such 
principal  made  the  payment  he  was  ignorant  of  the  fact  that 
his  agent  was  agent  of  the  other  principal,^^ 

§  452.  Mistake  of  law. — Where  the  mistake  is  of  law  and  not 
of  fact,  the  payment  will  be  considered  as  voluntary  and  can- 
not be  recovered  back.^  Thus,  where  the  payment  is  made 
with  full  knowledge  of  all  the  facts  in  the  case,  ignorance  of 
the  law  will  not  give  the  plaintiff  a  right  of  action,  he  having 
made  payment  voluntarily  and  not  under  compulsion;^  he 
cannot  recover  back  though  he  was  not  liable  upon  the  debt 
demanded.^ 

10.  Holcomb  V.  Weaver,  136  Mass.  Rousmanier,  1  Pet.  (U.  S.)  1,  8 
265;  Byrd  v.  Hughes,  84  111.  174,  Wlieat.  (U.  S.)  174;  Price  v.  Es- 
25  Am.  Rep.  442;  Atlee  v.  Fink,  75  till,  87  Mo.  378;  Norton  v.  Highley- 
Mo.  100;  42  Am.  Rep.  385  and  man,  88  Mo.  621 ;  Harralson  v.  Bar- 
note;  Scribner  v.  Collar,  40  Mich.  rett.  99  Cal.  607,  34  P.  342. 
375,  29  Am.  Rep.  541.  2.  Cook      v.      Boston,      9      Allen 

ll.Cannell  v.  Smith,  142  Pa.  St.  (Mass.),   393   Benson  v.  Monroe,  7 

25,  21  A.  793,  12  L.  R.  A.  395  and  Cush.     (Mass.)     125,    54    Am.    Dec. 

note;   Campbell  v.  Baxter,  41   Neb.  716;    Forbes   v.   Appleton,   5   Cush. 

729,  60  N.  W.  90.     See,  also,  Kelly  (Mass.)    115;  Brisbane  v.  Dacres,  5 

V.  Solari,  9  Mees.  &  Wei.  54;  Ever-  Taunt.  144;  Couch  v.  Kansas  City, 

hart    V.    Searle,    71    Pa.    St.    256;  127   Mo.   436.   30   S.  W.    117.     See, 

Raisin  v.  Clark,  41  Md.  158,  20  Am.  also,  Campbell  v.  Clark,  44  Mo.  App. 

Rep.  66 :  Farnsworth  v.  Hemmer,  1  249. 

Allen    (:\Ias9.),    494,    79    Am.    Dec.  3.  Vandcrbeok  v.   Rochester,   122 

756.  N.  Y.  285,  25  N.  E.  408;  Hubbard 

1.  Gage  V.  Allen,  89  Wis.  98,  61  v.    Martin,    8    Yerg.    (Tenn.)    498; 

N.  W.  361 ;  Pass  v.  Grenada  Coun-  Wayne  County  v.  Randall,  43  Mich, 

ty,  71  Miss.  426,  14  So.  447;   Snell  137,     5     N.     75;      Berkhauser     v. 

V.   Ins.   Co.,   98   U.   S.   85;    Hunt   v.  Schmitt,  45  Wis.  316,  30  Am.  Rep. 

521 


§    452  OPERATION    OF    CONTRACTS.  Ch.     16 

Where  the  law  is  unsettled  and  is  in  doubt,  money  paid  with 
full  knowledge  of  the  facts,  but  under  mistake  of  the  true  con- 
struction of  the  law,  may  be  considered  in  the  nature  of  a 
compromise,  and  cannot  be  recovered  back,  unless  the  trans- 
action be  between  persons  who  do  not  stand  on.  equal  footing,* 
Hence,  a  private  citizen  buying  public  land,  and  a  receiver  of 
tlie  land  officer  acting  under  the  instructions  of  his  superior,  do 
not  stand  on  an  equal  footing  as  to  the  law  governing  such 
transaction  ;  and  money  paid  by  such  citizen  for  land  at  a  higher 
price  than  the  statute  requires,  may  be  recovered  back,  though 
paid  without  objection  or  protest.^ 

It  must  be  remembered  that  the  money  paid  in  mistake  of 
law,  must  be  without  fraud  or  mistake  of  fact,  in  order  that 
it  cannot  be  recovered.® 

Where  the  parties  are  not  on  equal  terms,  the  general  rule 
does  not  apply.  Thus,  a  payment  made  to  a  public  officer  in 
discharge  of  a  fee  or  tax  illegally  exacted,  is  not  such  a  volun- 
tary payment  as  will  preclude  the  party  from  recovering  it 
back.'^ 

Where  the  payment  is  made  under  a  species  of  duress,  the 
rule  does  not  apply.  Thus,  in  case  where  money  is  paid  in 
excess  of  what  is  due  in  order  to  prevent  a  threatened  sale  of 
mortgaged  property  f  and  so  payments  made  to  a  common 
carrier  to  induce  it  to  do  what  by  law,  without  them  it  was 
bound  to  do,  are  not  voluntary;®  and  so  illegal  interest,  paid 
as  a  condition  to  redeem  a  pledge  is  a  payment  by  compulsion, 
and  not  voluntary;^''    and  so  illegal  fees  exacted  by  a  collector, 

740;   Needles  v.  Burk,  81  Mo.  3lJ9,  Briggs,  2  Denio   (N.  Y.),  26;  Iowa 

51  Am.  Rep.  251;   Langevin  v.   St.  City  v.  Johnson   County,   99   Iowa, 

Paul,  49  Minn.  189,  51  N.  W.  817;  513,  68   N.  W.  815. 

Beard  v.  Beard,  25  W.  Va.  486,  52  7.  Swift  Co.  v.  United  States,  111 

Am.  Rep.  219.  U.  S.  22,  4  S.  Ct.  244. 

4.  Healey  v.  United  States,  29  8.  Close  v.  Pliipps,  7  Man.  &  Gr. 
Ct.  CI.  115.  oSfl. 

5.  Healey  v.  United  States,  29  9.  Parker  v.  Railway  Co.,  7  Man. 
Ct.  CI.  115.  &  Gr.  253. 

6.  Scotland  County  V.  Ewing.  116  10.  Astley  v.  Reynolds,  2 
Mo.  129,  22  S.  W.  476;  Snelson  v.  Strange,  915;  Tutt  v.  Ide,  3 
State,    16    Ind.    31  :    Supervisors   v.  Blatehf.  C.  C.  249. 

522 


Ch.    16  IMPLIED   CONTRACTS.  §§    452, 453 

though  sanctioned  by  a  long  continued  usage  and  practifo  in 
the  office,  under  a  mistaken  construction  of  the  statute,  even 
when  paid  without  protest,  may  be  recovered  back,  on  the 
ground  that  the  payment  was  compulsory  and  not  voluntary." 

To  make  a  payment  involuntary,  it  is  not  necessary  that  it 
should  be  by  actual  violence  or  any  physical  duress.  It  is  suf- 
ficient if  the  payment  is  caused  on  the  one  part  by  an  illegal 
demand,  and  made  on  the  other  part  reluctantly,  and  in  con- 
sequence of  that  illegality,  and  without  being  able  to  regain 
possession  of  his  property,  except  by  submitting  to  the  pay- 
ment. ^^  To  make  the  payment  a  voluntary  one,  the  parties 
should  stand  upon  an  equal  footing. ^^ 

If  a  person  illegally  claims  a  fee  colore  officii,  the  payment 
is  not  voluntary  so  as  to  preclude  the  party  from  recovering 
back."  And  one  who  is  compelled  to  pay  more  than  his  shares 
of  the  fees  of  a  tax  collector  in  order  to  prevent  a  tax  sale  of 
his  land,  may  recover  the  excess  in  assumpsit. ^^ 

§  453.  Mistake  of  law — In  equity. — Mistakes  of  law  cannot 
generally  be  admitted  as  a  ground  of  relief  in  equity,  but  this 
rule  is  not  of  universal  application.^  And  where  there  is  a 
mixed  mistake  of  law  and  of  fact,  relief  in  equity  will  be 
granted.^ 

Upon  the  general  question  whether,  where  all  the  facts  are 
known,  or  may  with  ordinary  diligence  be  known,  money  paid 
under  a  mistake  of  law  may  be  recovered  back,  the  authorities 
conflict. 

11.  Ogden  V.  Maxwell,  3  Blatchf.  14.  Morgan  v.  Palmer,  2  Barn. 
C.  C.  319.                                                       &    Cr.    729;    Steele   v.    Williams,    8 

12.  Maxwell     v.      Griswold,      10        Exch.  625. 

How.  (U.  S.)  242;  American  Steam-  15.  Benton  v.  Goodale,  66  N.  H. 

ship  Co.  V.  Young,  89  Pa.  St.   186,  424,  30  A.  1121;  Cardigan  v.  Page, 

33   Am.   Rep.   748;    Cunningham  v.  6  N.  H.   182. 

Monroe,    1.5    Gray     (Mass.),    471;  1.  Baker    v.    Massey,    50    Iowa, 

Carew  v.  Rutherford,   106  Mass.   1,  399;  Iowa  City  v.  Johnson  County, 

8  Am.  Rep.  287;  Preston  v.  Boston,  99  Iowa,  513,  68  N.  W.  815. 

12  Pick.    (Mass.)    17.  2.  Griffith    v.    To^\^^ley,    69    Mo. 

13.  Beckwith   v.    Frisbie.   82   Vt.  13,  33  Am.  Rep.  476. 
559,  566. 

523 


§§    453,  454  OPEEATION    OF    CONTRACTS.  Ch.    16 

It  is  held  by  some  courts  that  iiioney  paid  under  a  mistake 
either  of  law  or  of  fact,  is  no  defense  to  an  action  brought  to  re- 
cover it,  that  the  mistake  arose  through  the  plaintiff's  negligence, 
if  such  negligence  caused  the  defendant  no  harm.^  And  this  is 
especially  so  where  the  party  making  the  payment  acts  in  a 
fiduciary  capacity.  So  a  recovery  cannot  be  prevented  in  all 
cases  where  money  is  paid  under  a  mistake  of  law.* 

The  rule  to  entitle  the  plaintiff  to  recover  money  paid  under 
mistake  of  fact  is :  1.  The  money  must  he  paid  by  one  under  a 
mistake  of  his  rights  and  his  duty,  and  be  such  as  he  is  under 
no  moral  or  legal  obligation  to  pay.  2.  The  recipient  of  the 
money  must  have  no  right  in  good  conscience  to  retain  it.^ 

And  so  where  an  administrator,  under  a  mistake  of  law, 
makes  an  over  payment  of  a  claim,  he  can  recover  back  the 
surplus.^ 

§  454.  Compromise. — If,  in  a  settlement  of  mutual  accounts, 
one  party  thereto  allows,  without  being  induced  by  fraud,  a 
certain  sum  of  money  by  way  of  compromise  of  a  doubtful 
claim,  he  cannot  recover  it  back.^  If  the  settlement  is  the 
result  of  a  compromise,  it  is,  in  absence  of  fraud,  binding  and 
conclusive.  It  is  sufficient  to  render  the  settlement  valid  if 
there  are  questions  in  dispute  between  the  parties  which  have 
been  decided.^  Where  the  settlement  is  made  by  both  parties 
without   fraud   on   the   one   side,    or   ignorance   or   misunder- 

3.  Northrop  v.  Graves,  19  Conn.  Northrop  v.  Graves,  19  Conn.  548, 
548,  50  Am.  Dec.  264;  Culbreath  v.  50  Am.  Dec.  268.  See,  also,  Cul- 
Culbreath,  7  Ga.  64,  50  Am.  Dec.  breath  v.  Culbreath,  7  Ga.  64,  50 
375;  Stevens  v.  Goodsell,  3  Met.  Am.  Dec.  375;  Stevens  v.  Goodsell, 
(Mass.)  34  Rogers  v.  Weaver,  5  3  Met.  (Mass.)  34;  Rogers  v.  Wea- 
Ham.  (Ohio)  536;  Beatty  v.  Dufief,  ver,  5  Ham.  (Ohio)  536;  Beatty  v. 
11     La.     Ann.     74;     Mansfield     v.  Dufief,   11   La.  Ann.  74. 

Lynch,  59  Conn.  320,  22  A.  313,  12  6.  Mansfield  v.  Lynch,  59  Conn. 

L.  R.  A.  285.  320,  22  A.  313,  12  L.  R.  A.  285. 

4.  Mansfield  v.  Lynch,  59  Conn.  1.  Stuart  v.  Sears,  119  Mass.  143. 
320,  22  A.  313,  12  L.  R.  A.  285.  2.  Barlow    v.    Ins.    Co.,    4    Met. 

5.  Mansfield  v.  Lynch,  59  Conn.  (Mass.)  270;  Kerr  v.  Lucas,  I 
320,   22   A.   313,   12   L.   R.   A.   285;  Allen    (Mass.),   279. 

524 


Ch.    16  IMPLIED    CONTRACTS.  §§    454-456 

standing  of  any  material  facts  on  the  other  side,   it  is  con- 
clusive.^ 

But  if  there  be  a  mistake  as  to  a  material  fact,  which  was 
believed  to  be  true,  and  on  the  belief  in  the  truth  the  com- 
promise was  made,  then  the  payment  of  money  may  be  recov- 
ered back,  the  law  creating  an  implied  contract  to  repay.'' 

§  455.  Duress. — Payment  by  a  person  prima  facie  liable  for 
a  debt  under  a  threat  by  the  creditor  to  sue  therefor  unless  it 
is  paid,  is  not  a  payment  under  duress,  and  it  cannot  be  recov- 
ered back  f  for  it  is  not  duress  to  threaten  to  or  actually  take 
advantage  of  the  usual  remedy  for  the  enforcement  of  a  debt 
or  obligation;®  and  this  is  true  even  if  the  claim  be  an  illegal 
one.^ 

But  where  an  arrest  is  made  for  the  purpose  of  extortion, 
money  paid  by  the  person  arrested  while  under  duress  by  im- 
prisonment and  threats,  may  be  recovered  though  there  is 
probable  cause  and  the  warrant  was  irregular,^  as  for  money 
had  and  received. 

§  456.  Payment  of  taxes  and  assessments. — Where  one  pays 
an  illegal  demand  for  taxes  with  a  full  knowledge  of  all  the 
facts  which  render  such  demand  illegal,  without  an  immediate 
and  urgent  necessity,  or  unless  to  release  his  person  or  property 
from  detention,  or  to  prevent  an  immediate  seizure  of  his  per- 
son or  property,  such  payment  must  be  deemed  voluntary  and 
cannot  be  recovered  back;^    and  the  fact  that  the  party  at  the 

3.  Diebold,  etc.  Lock  Co.  v.  7.  Preston  v.  Boston,  12  Pick. 
Barnes,   53   111.  App.   144.  (Mass.)    12;    Holt  v.   Thomas,   105 

4.  Rheel  v.  Hicks,  25  N.  Y.  289.  Cal.  273,  38  P.  891. 

5.  Holt  V.  Thomas,  l05  Ciil.  273,  8.  Fillman  v.  Kyon.  168  Pa.  St. 
38  P.  891.  404.  32  A.  89. 

6.  Brumaguire  v.  Tillinghast,  18  1.  Dixon  County  v.  Beardshear, 
Cal.  271,  79  Am.  Dec.  176;  Bucknall  38  Neb.  389,  56  N.  W.  990;  Hopkins 
V.  Story,  46  Cal.  587;  Mayor  v.  v.  Butte,  16  Mont.  103.  40  P.  865; 
Leflferman,  4  Gill  (Md.),  425,  45  First  Nat.  Bank  v.  Mayor,  68  Ga. 
Am.  Dec.  145  and  note;  Weber  v.  120,  45  Am.  Rep.  476;  Rogers  v. 
Kerkendall,  44  Neb.  766,  63  N.  W.  Greenbush.  58  Me.  392,  4  Am.  Rep. 
35. 

525 


§  456 


OPERATION    OF    CONTRACTS. 


Ch.    16 


time  of  making  the  payment  files  a  written  protest,  does  not 
make  the  payment  involuntary.^ 

And  money  voluntarily  paid  by  the  holder  of  a  tax  sale 
certificate  for  subsequent  taxes  on  the  property,  cannot  be  re- 
covered back,  in  the  absence  of  fraud  and  mistake.^ 

But  M^here  money  has  been  paid  on  an  assessment  which  is 
void  for  want  of  jurisdiction/  or  where  authority  to  levy  a 
tax  is  wholly  wanting,^  the  money  may  be  recovered  back.  And 
so  when  a  party  not  liable  to  taxation  is  called  upon  peremp- 
torily to  pay  taxes,  and  he  can  save  his  property  and  himself 
in  no  other  way  than  by  paying  the  illegal  demand,  he  may 
pay  under  protest  and  then  recover  the  money  so  paid.® 

But  where  the  assessment  is  illegal  and  the  city  has  no  means 
to  enforce  it,  or  of  seizing  the  person  or  property  of  the  party, 
or  of  selling  his  property  and  giving  the  purchaser  a  color 
of  title,  and  the  party  knows  the  facts,  and  pays  the  demand, 
he  cannot  recover  it  back.' 


292;  Bowman  v.  Boyd,  21  Nev.  281, 
30  P.  823;  Richardson  v.  Denver,  17 
Colo.  398,  30  P.  333;  Swift  v. 
Poughkeepsie,  37  N.  Y.  511. 

2.  Wabaunsee  County  v.  Walker, 
8  Kan.  431;  Union,  etc.  R.  R.  Co. 
V.  Dodge  County,  98  U.  S.  541; 
Ligonier  v.  Ackerman,  46  Ind.  552, 
15  Am.  Rep.  323;  Morris  v.  Mayor, 
5  Gill  (Md.),  244;  Goddard  v.  Sey- 
mour, 30  Conn.  394;  Garrigan  v. 
Knight,  47  Iowa,  525;  Powell  v. 
St.  Croix  County,  46  Wis.  210,  50 
N.  W.  1013;  Little  v.  Bowers,  134 
U.  S.  547,  10  S.  Ct.  620;  Hopkins 
V.  Butte,   16  Mont.   103,  40  P.  865. 

3.  Lindsey  v.  Boone  County,  92 
Iowa,  86,  60  N.  W.  173. 

4.  Mutual  Life  Ins.  Co.  v.  New 


York,  144  N.  Y.  494,  39  N.  E.  386; 
Jex  V.  Mayor,  103  N.  Y.  536,  9  N.  E. 
39. 

5.  Shoup  V.  Wills,  2  Idaho,  108, 
6  P.  124;  Gillette  v.  Hartford,  31 
Conn.  351;  Newman  v.  Supervisors, 
45  N.  Y.  676. 

•  6.  Manufacturing  Co.  v.  Ames- 
burg,  17  Mass.  461;  Preston  v.  Bos- 
ton, 12  Pick.  (Mass.)  14;  Erskine 
V.  Van  Arsdale,  15  Wall.  (U.  S.) 
75;  Whitney  v.  Port  Huron,  88 
Mich.  268,  50  N.  W.  316,  26  Am.  St. 
Rep.  291. 

7.  Newcome  v.  Davenport,  86 
Iowa,  291,  53  N.  W.  232.  See,  also, 
Bucknell  v.  Story,  46  Cal.  595,  13 
Am.  Rep.  220;  Rutledge  v.  Price 
County,  66  Wis.  35,  27  N.  W.  819. 


526 


Oh.    16  IMPLIED    CONTRACTS.  §    457 

ARTICLE  IV. 
Receiving  Benefits  from  Another. 

Section   457.  Voluntary  Benefits  Conferied. 

458.  Voluntary  Acceptance  of  Benefits. 

459.  Municipal  Corporations. 

460.  Family  Relations — Benefits  Received. 

461.  Services  of  a  Supposed  Wife. 

462.  Extra  Services. 

463.  Corporation's  Liability  to  Its  Promoters. 

464.  Implied  Assumpsit — Waiving  a  Tort. 

465.  Oral  Agreement  to  Bequeath  or  Devise  Property. 

466.  Enforcement  in  Equity  and  in  Law. 

467.  Parol  Contract. 

468.  Necessaries  for  Wife. 

469.  Necessaries   for   Minor — Money   Furnished   by   Another. 

470.  Father  Liable  for  Necessaries  for  Minor  Children. 

471.  Necessaries  for  Insane  Person. 

472.  Liability  of  Insane  Person's  Estate. 

473.  Part  Performance — Quantum  Meruit. 

474.  Wilful  Default— Wages. 

475.  Default  not  Wilful — Personal  Service. 

476.  Promise  to  Marry. 

477.  Substantial  Performance. 

478.  Order  Given  by  One  and  Filled  by  Another. 

479.  Part  Performance  Under  a  Void  Contract. 

480.  Under  no  Obligations  to  Perform — Part  Performance. 

481.  Failure  to  Pay  in  a  Manner  Agreed  to. 

482.  Part  Performance — Rescission  of  Contract. 

483.  Work  and  Labor. 

484.  Physician's  Services. 

485.  Burial  of  the  Dead. 

§  457.  Voluntary  benefits  conferred — Any  act  done  for  the 
benefit  of  another  Avithout  his  acceptance  is  to  be  deemed  a  vol- 
untary act,  for  which  no  action  can  be  sustained,  unless  after 
knowing  of  the  service  the  person  benefited  promises  to  pay 
for  it.^ 

1.  New  Orleans,  etc.  R.  R.  Co.  v.  son,  20  Johns.    (N.  Y.)   29,  11  Am. 

Turcan,    46    La.    Ann.    155,    15    So.  Dec.  238  and  note;  Glenn  v.  Savage, 

187;  Cahill  v.  Hall,  161  Mass.  512,  14  Oreg.  567;    Reus  Glass  Factory 

37  N.  E.  513;  Bartholomew  v.  Jack-  v.  Reed,  5  Cow.  (N.  Y.)  587;  Lynch 

52Y 


§    457  OPERATION    OF    CONTRACTS.  Ch.    16 

A  party  has  a  right  to  select  and  determine  with,  whom  he 
will  contract,  and  cannot  have  another  person  thrust  upon  him 
without  his  consent.  In  all  cases  of  express  contract  a  party  may 
contract  with  whom  he  pleases ;  the  sufficiency  of  his  reasons 
for  so  doing  cannot  be  inquired  into.  But  there  are  cases 
where  the  law  will  imply  a  promise  to  pay  by  a  party  Avho 
protests  he  will  not  pay ;  but  those  cases  are  cases  in  which  the 
law  creates  a  duty  to  perform  that  for  which  it  implies  a 
promise  to  pay,  notwithstanding  the  party  owing  the  duty 
absolutely  refuses  to  pay.  If  a  man  absolutely  refuses  to  fur- 
nish necessaries  to  his  wife  and  minor  children,  the  law  will 
compel  him  to  do  it,  and  imply  a  promise  against  his  protes- 
tations. But  such  promise  will  never  be  implied  against  his 
protest,  except  in  cases  where  the  law  itself  imposes  a  duty; 
and  this  duty  must  be  a  legal  duty.  Hence,  a  promise  will 
not  be  implied  against  the  express  declaration  of  a  person  upon 
whom  no  legal  duty  is  imposed  by  law.^  And  so  a  promise 
will  not  necessarily  be  implied  from  the  mere  fact  of  having 
denied  a  benefit.^ 

Because  there  is  no  privity  of  contract  between  the  parties, 
and  without  such  privity  the  possession  and  use  of  property 
of  another  will  not  support  implied  assumpsit.* 

Thus,  where  an  ice  company  can  no  longer  perform  its  con- 
tract with  a  consumer,  and  sells  its  business  to  another  com- 
pany who,  unknown  to  the  consumer,  furnishes  the  ice,  the 
consumer  is  not  liable  for  the  ice  so  furnished  by  the  grantee 
of  the  original  company  with  whom  he  had  a  contract.^     If  he 

V.    Bogy,    19    Mo.    170;    Bailey    v.  3.  Boston  Ice  Co.  v.  Potter,  123 

Gibbs,  9  Mo.  45;  Jones  v.  Wilson,  Mass.  28,  25  Am.  Rep.  9.    See,  also, 

3    Johns.     (N.    Y. )    434;    Beach   v.  Schmaling   v.   Tomlinson,   6   Ti^unt. 

Vanderbergh,     10    Johns.     (N.    Y.)  147 ;  Boulton  v.  Jones,  2  Hurl.  &  N. 

360;  Shaw  v.  Graves,  79  Me.  166,  8  564. 

A.  884;  White  v.  Jones,  14  La.  Ann.  4.  Hills  v.  Snell,  104  Mass.   173, 

681;  Potter  v.  Carpenter,  76  N.  Y.  6  Am.  Rep.  216;   Boston  Ice  Co.  v. 

157;  Jared  v.  Vanvleet,  13  111.  App.  Potter,  123  Mass.  28. 

334.  5.  Boston  Ice  Co.  v.   Potter,   123 

2.  Earle    v.    Coburn,    130    Mass.  Mass.  28,  25  Am.  Rep.  9.     See,  also, 

596;   Wliiting  v.   Sullivan,  7  Mass.  Orcutt  v.  Nel-^on,   1  Gray    (Mass.), 

107.  536;  Hardman  v.  Booth,  1  Hurl.  & 

528 


Ch.    16  IMPLIKD    CONTRACTS.  §§    457,  458 

had  received  notice  of  the  change  and  then  continued  to  take 
the  ice  as  delivered,  a  contract  would  be  implied.^ 

§  458.  Voluntary  acceptance  of  benefits.  —  Ordinarily, 
where  services  are  rendered  and  voluntarily  accepted,  the  law 
will  imply  a  promise  upon  the  part  of  the  recipient  to  pay  for 
them.^  The  services  must  be  known  and  accepted  by  the  re- 
cipient, to  have  the  law  imply  a  promise  on  his  part  to  pay  for 
them.^ 

But  where  one  agrees  to  work  for  another  for  nothing,  he 
may  afterwards  refuse  to  work.  But  if  he  voluntarily  per- 
forms his  promise  and  does  the  work,  he  cannot  afterwards 
compel  payment  for  the  work,^ 

A  party  knowingly  receiving  the  benefits  from  another, 
creates  a  promise  to  pay  for  them.* 

If  a  party  voluntarily  accepts  and  avails  himself  of  valu- 
able services  rendered  for  his  benefit,  when  he  has  the  option 
to  accept  or  reject  them,  even  if  there  is  no  distinct  proof  that 
they  were  rendered  by  his  authority  or  request,  a  promise  to 
pay  for  them  may  be  inferred.  His  knowledge  that  the  bene- 
fits were  valuable,  and  his  exercise  of  the  option  to  avail  him- 
self of  them,  justify  this  inference.^ 

C.  803;  Humble  v.  Hunter,  12  Q.  B.  4.  Ford  v.  Ward,  26  Ark.   360; 

310;  Robson  v.  Drummond,  2  Barn.  St.  Patrick's  Church  v.  Abst,  76  111. 

&  Ad.  303;  Winchester  v.  Howard,  252;  Hearst  v.  Hite,  20  W.  Va.  183; 

97  Mass.  303,  93  Am.  Dec.  93 ;  Boul-  Jones    v.    Smith,    76    Pa.    St.    408 ; 

ton  V.  Jones,  2  Hurl.  &  N.  564.  Moreland   v.   Davidson,   71    Pa.   St. 

6.  Mudge     V.     Oliver,     1     Allen  371;    Dougherty  v.    Whitehead,    31 

(Mass.),    74;    Orcutt  v.    Nelson,    1  Mo.  255;  Disbrow  v.  Durand,  54  N. 

Gray   (Mass.),  536;  Mitchell  v.  La-  J.   L.   343,   24   A.   545,   33  Am.   St. 

page.  Holt,  N.  P.  253.  Rep.  678;   Farmington  Academy  v. 

1.  Disbrow  v.  Durand.  54  N.  J.  Allen,  14  Mass.  172,  7  Am.  Dec. 
L.  343,  24  A.  545,  33  Am.  St.  Rep.  201 ;  McCrary  v.  Ruddick,  33  Iowa, 
678.  521 ;  Scully  v.  Scully,  28  Iowa,  543. 

2.  Scully  V.  Scully,  28  Iowa,  548.  5.  Spencer    v.    Traflford,    42    Md. 

3.  Doyle  v.  Trinity  Church,  133  20;  Day  v.  Caton,  119  Mass.  513,  20 
N.  Y.  372,  31  N.  E.  221.  See,  also.  Am.  Rep.  347;  Wallace  v.  Schaub, 
Force  v.  Haines,  2  Harr.    (N.  J.)  81  Md.  594,  32  A.  324. 

385;  Watson  v.  Ledoux,  8  La.  Ann. 
68. 

52« 


§§    458-460'  OPERATION    OF    CONTRACTS.  Ch.    16 

As  between  persons  not  members  of  tbe  same  family,  the 
mere  fact  of  rendering  services  useful  to  the  defendant  will 
furnisb  p7'ima  facie  evidence  of  their  acceptance,  and  in  the 
absence  of  some  proof  to  the  contrary,  will  raise  an  obligation 
to  pay  him  what  they  were  worth,  there  being  no  proof  of 
special  value.® 

§  459.  Municipal  corporations. — A  city  is  liable  for  gas  fur- 
nished it,  with  knowledge  of  the  council,  though  no  ordinance 
or  resolution  was  passed  authorizing  it  to  be  furnished.^  And 
so  when  a  city,  restricted  by  its  charter  to  contract  in  writing, 
and  to  create  no  general  liability,  is  nevertheless  liable,  upon 
an  implied  contract,  to  compensate  a  party  who  has  furnished 
gas  for  use  upon  its  streets,  when  a  specific  tax  has  been  levied 
and  collected  for  that  purpose,  which  cannot  be  lawfully  di- 
verted to  any  other. ^  Cities  and  private  corporations  must 
account  for  money  or  other  property  applied  by  their  officers 
to  authorized  uses,  although  the  money  or  property  so  applied 
was  received  under  an  agreement  which  was  wholly  void.^ 

The  doctrine  of  implied  contract  applies  to  cases  where 
money  or  other  property  is  received  under  such  circumstances 
that  the  general  law,  independent  of  express  contract,  imposes 
an  obligation  upon  the  city  to  do  justice  with  respect  to  the 
same.  If  the  city  obtain  money  of  another  by  mistake  or  with- 
out any  contract  entered  into  by  it  on  the  subject,  from  gen- 
eral obligation  to  do  justice,  it  is  liable,  on  an  implied  con- 
tract, to  account  for  it. 

§  460.  Family  relations  —  Benefits  received. — ^Where  the 
services  are  rendered  by  members  of  a  family,  living  as  one 
household,  to  each  other,  there  is  no  implication  of  a  contract 
of  payment  from  the  mere  rendition  and  acceptance  of  the 

6.  Spencer  v.  TrafFord,  42  Md.  20.  2.  Gas  Light  Co.  v.  Memphis,  93 

See,  also,  Wallace  v.  Schaub,  81  Md.  Tenn.  612,  30  S.  W.  25. 

594,  32  A.  324.  3.  Hitchcock  v.  Galveston,  96  U. 

1.  Gas    Company    v.    San    Fran-  S.  350. 
Cisco,  9  Cal.  453. 

530 


Ch.    16  IMPLIED    CONTRACTS.  §    460 

services.  In  order  to  rccoror  for  the  services,  the  plaintiff 
must  affirmatively  show,  cither  that  an  express  contract  for 
remuneration  existed,  or  that  the  circumstances  under  which 
the  services  were  rendered  were  such  as  exhibit  a  reasonable 
and  proper  expectation  that  there  would  be  compensation.^  The 
household  family  relationship  is  presumed  to  abound  in  recip- 
rocal acts  of  kindness  and  good-will,  which  tend  to  the  mutual 
comfort  and  convenience  of  the  members  of  the  family,  and 
gratuitously  performed.  This  relationship  prevents  the  impli- 
cation of  a  promise  to  pay  for  services.  And  this  exception 
should  not  be  limited  to  mere  propinquity  of  kindred.  This 
family  relation  should  be  extended  to  remote  relations,  and 
even  to  persons  between  whom  there  is  no  tie  of  blood. ^ 

Most  of  the  cases  treat  of  this  subject  only  with  the  relation 
of  parent  and  child,  or  the  cases  where  one  party  stands  in  loco 
parentis.^  But  the  rule  should  not  be  limited  to  that  relation, 
for  it  contemplates  children,  parents,  grandparents,  brothers, 
step-children  and  other  relations.^  This  rule  should  apply  to 
all  cases  where  the  parties  stand  in  the  relation  to  each  other 

1.  In    re    Schmidt's    Estate,    93  Cohen,   2   Mack.   D.   C.   227;    In   re 

Wis.    120,  67   N.   W.   37;    Plate  v.  Kessler's   Estate,   87   Wis.   660,   59 

Durst,  42  W.  Va.  63,  24  S.  E.  580,  N.  W.  29,  41  Am.  St.  Rep.  74. 

32  L.  R.  A.  404;  Callahan  v.  Wood,  2.  Disbrow  v.   Durand,  54  N.  J. 

118    N.    Car.    752,    24    S.    E.    542;  L.  343,  24  A.  545,  33  Am.  St.  Rep. 

Tank   v.    Rohweder,    98    Iowa,    154,  678. 

67  N.  W.  106;  Brown  v.  Buttle,  80  3.  Windhand  v.  Deeds,  44  Iowa, 

Me.  162,  13  A.  583;  Collyer  V.  Coll-  98;    Smith    v.    Johnson,    45    Iowa, 

yer,   113  N.  Y.  442,  21  N.  E.  114;  308;    Thorp   v.   Bateman,   37   Mich. 

Collar    V.    Patterson,    137    111.    403,  68,    26    Am.    Rep.    487;     Ryan    v. 

27    N.   E.   604;    Heffron   v.    Brown,  Lynch,  9  Mo.  App.   18;   Mariner  v. 

155  111.  322,  40  N.  E.  583;  Disbrow  Collins,  5  Harr.   (Del.)   290;  Kegan 

V.  Durand,  54  N.  J.  L.  343,  24  A.  v.  Malone,  62  Iowa,  208,  17  N.  461  ; 

545,  33  Am.   St.   Rep.   678;    Harris  Harris    v.     Currier,    44    Vt.    468; 

V.   Currier,   44  Vt.   468 ;    Wilson  v.  Stone  v.  Todd,  49  X.  J.  L.  274,  280 : 

Wilson,    52    Iowa,    44,    2    N.    615;  Kendall  v.  Kendall,  36  N.  J.  Eq.  91, 

X'Uiier  V.  Mowry,   l6  R.  I.  424,  28  99;  RidgAvay  v.  English,  22  N.  J.  L. 

A.  606;  Greenwell  v.  Greenwell,  28  409. 

Kan.    675;    W^illace   v.    Schaub,   81  4.  Updike   v.  Titus,   13   X.  J.   L. 

Md.  599,  32    A.  324;  Hayos  v.  ^U--  lol. 
Connell,    42    Ind.    285:     Cohen    v. 

531 


§    460  OPERATION    OF    CONTRACTS.  Ch.    16 

of  support  on  one  side  and  services  on  the  otlier.^  The  rule 
should  extend  beyond  parent  and  child,  and  to  those  parties 
where  close  family  relationship  is  shown  to  exist.^ 

Where  it  is  shown  that  the  person  rendering  the  services  is 
a  member  of  the  family  of  the  person  served  and  receiving 
support  therein,  either  as  a  child  or  relative  or  a  visitor,  a 
presumption  of  law  arises  that  such  services  were  gratuitous 
and,  in  such  case,  before  the  person  rendering  the  service  can 
recover,  the  express  promise  of  the  party  served  must  be  shown, 
or  such  facts  and  circumstances  as  will  authorize  the  jury  to 
find  that  the  services  were  rendered  in  the  expectation  by  one 
receiving  and  by  the  other  making  compensation  therefor.^ 

Thus,  the  rule  should  apply  as  between  brother-in-law  and 
sister-in-law  f  and  where  there  is  a  household  relation,  it 
should  embrace  not  only  remote  kindred,  but  also  those  who 
stand  in  the  place  of  kindred.^ 

But  some  of  the  courts  speak  of  this  relation  as  restricted 
to  cases  where  such  a  relationship  in  blood  existed.  Thus, 
the  relation  of  granddaughter  has  been  deemed  not  alone  suf- 
ficient to  rebut  the  presumed  obligation  to  pay  for  services 
rendered  in  the  grandfather's  family.^" 

In  Pennsylvania  presumption  that  the  services  were 
gratuitous,  applies  only  in  the  case  of  parent  and  child.  In 
all  other  cases,  there  must  be  evidence  beyond  the  relationship 
that  the  creation  of  no  debt  was  intended." 

5.  Homer  v.  Webster,  33  N.  J.  9.  Disbrow  v.  Durand,  54  N.  J. 
L.  411.                                                               L.  343,  24  A.  545,  33  Am.  St.  Rep. 

6.  Robinson  v.  Eastman,  2  Denio       678. 

(N.  Y.),  152;   Scully  v.  Scully,  28  10.  Hanser  v.   Sane,   74  N.   Car. 

Iowa,    548;    Kegan    v.    Malone,    62  552. 

Iowa,  208,  17  N.  461;  Hall  v.  Finch,  11.  Gerz  v.  Demarra,  162  Pa.  St. 

29    Wis.    278,    9    Am.    Rep.    559;  530,    29   A.    761,   42   Am.    St.   Rep. 

Bundy  v.  Hyde,  50  N.  H.  116.  842.      See,    also,    Perkins    v.    Has- 

7.  Scully  V.  Scully,  28  Iowa,  548;  brouck,  155  Pa.  St.  494,  26  A.  695; 
Kegan  v.  Malone,  62  Iowa,  208,  17  Smith  v.  Milligan,  43  Pa.  St.  107; 
N.  461.  Miller's  Appeal,  100  Pa.  St.  568,  45 

8.  Bundy  v.  Hyde,  50  N.  H.  Am.  Rep.  394;  Stafford  v.  Devereux, 
116.  166  Pa.  St.  277,  31  A.  87. 

532 


Cll.     IG  IMPLIED    CONTRACTS.  §    461 

§  461.  Services  of  a  supposed  wife. — ^Where  a  woman  mar- 
ries a  man  and  lives  with  him  as  his  wife  during  his  life,  she 
cannot  recover  for  services  rendered  as  his  housekeeper,  the  hus- 
band having  a  wife  when  he  married  her,  thus  rendering  the 
last  marriage  void ;  no  implied  contract  was  created  to  pay 
her.^ 

The  actual  relations  and  the  circumstances  under  which  the 
work  was  performed,  negatived  any  implication  of  an  agree- 
ment or  promise  that  it  should  be  paid  for.^  Her  remedy  was 
by  an  action  of  tort  for  the  deceit  in  inducing  her  to  marry 
him  by  false  representations,  or  by  a  false  promise.^ 

There  are  cases  where  the  same  transaction  may  constitute 
a  cause  of  action  both  in  contract  and  in  tort,  and  a  party  may 
have  an  election  to  pursue  either  remedy.  But  a  right  of 
action  in  contract  cannot  be  created  by  waiving  a  tort,  and 
the  duty  to  pay  damages  for  a  tort  does  not  imply  a  promise 
to  pay  them,  upon  which  assumpsit  can  be  maintained.* 

If  a  man  and  woman  mutually  agree  to  live  together  as 
husband  and  wife  witliout  being  married,  after  separation  the 
woman  cannot  recover  for  services  rendered  in  keeping  house 
in  that  relation.^  In  this  case  the  services  rendered  was  in 
furtherance,  and  for  the  continuation  of  an  unlawful  rela- 
tion, and  no  implication  arises  that  the  woman  was  to  receive 
pay  for  her  services.  If  there  had  been  an  express  promise 
for  payment,  the  court  could  not  enforce  it,^  because  the  parties 
living  together  were  violating  the  principles  of  morality  and 
chastity  as  well  as  of  positive  law.^ 

1.  Cooper   V.    Cooper,    147    Mass.         (Mass.),  102;  Ferguson  v.  Carring- 
370,  17  N.  E.  892,  9  Am.  St.  Rep.        ton,  9  Barn.  &  Cr.  59. 

721.  5.  BrowTi  v.  Tuttle,  80  Me.   162, 

2.  Robbins    v.    Potter,    11    Allen        13  A.  583. 

(Mass.),  588,  98  Mass.  532.  6.  White      v.      Buss,      3      Cush. 

3.  Blossom  V.  Barrett,  37  N.  Y.  (Mass.)  448;  Gilmore  v.  Woodcock, 
434,  97  Am.  Dee.  747.  69  Me.  118,  31  Am.  Rep.  255. 

4.  Jones  v.  Hoar,  5  Pick.  (Mass.)  7.  Brown  v.  Tuttle,  80  Me.   162, 
285;    Brown   v.    Holbrook,    4    Gray  13  A.  583. 


533 


§§    462,  463  OPERATION    OF    CONTRACTS.  Ch.    16 

§  462.  Extra  services. — When  a  party  is  working  under  a 
salary,  lie  is  expected  to  perform  all  services  incident  to  his 
employment  for  the  compensation  agreed  upon.  The  mere 
fact  that  valuable  services  are  rendered  outside  of  the  party's 
employment,  does  not  make  his  employer  liable  for  them.  To 
render  the  party  liable  as  a  debtor  under  an  implied  promise 
to  pay  for  extra  service,  it  must  be  shown  that  the  services 
were  valuable,  and  that  they  were  rendered  under  such  cir- 
cumstances as  to  raise  the  fair  presumption  that  the  parties 
intended  and  understood  that  they  were  to  be  paid  for;  or, 
at  least,  that  the  circumstances  were  such  that  a  reasonable 
man  in  the  same  situation  with  the  person  who  receives  and  is 
benefited  by  them  would  and  ought  to  understand  that  com- 
pensation was  to  be  paid  for  them.^ 

Thus,  in  the  repairing  of  a  bank  building,  the  president 
superintended  the  work  of  repairs  and  then  demanded  pay  for 
extra  services,  and  it  was  held  that  there  was  no  implied  prom- 
ise that  the  corporation  would  pay  him  for  such  work,  and  that 
he  could  not  recover;^  such  services  can  be  paid  for  only 
when  there  is  an  express  contract  to  that  effect.^ 

§  463.  Corporation's  liability  to  its  promoters. — A  corpora- 
tion cannot  incur  a  debt  before  its  incorporation.  Hence,  a 
claim  for  money  expended  and  time  employed  for  the  organ- 
ization of  a  corporation  before  its  incorporation,  is  not  a  debt 
which  the  corporation  can  be  made  to  pay.'*  So,  also,  a  cor- 
poration after  its  organization  is  not  liable  for  payment  of 
debts  contracted  previously  thereto,  without  express  promise  to 
pay  them;  but  acceptance  and  receipt  of  the  benefits  of  that 
for  which  they  were  incurred,^  is  a  ratification  equivalent  to 
the  execution  of  an  original  contract  as  is  generally  held  by 
the  courts.^ 

1.  Sawyer  v.  Bank,  G  Allen  5.  Rockford,  etc.  E.  R.  Co.  v. 
(Mass.),  207.  Sage,  65  111.  328,  16  Am.  Rep.  587; 

2.  Pew  V.  Bank,   130  Mass.   391.  Outhouse  v.  Allen,  72  111.  529. 

3.  Levisee  v.  Railroad  Co.,  27  6.  Queen  City  Furniture  Co.  v. 
La.  Ann.  641.  Crawford,    127   Mo.   356,   30   S.   W. 

4.  Marchaud    v.    Association,    26  163. 
La.  Ann.  389. 

534 


Cll.    16  IMPLIED    CONTRACTS.  §    464 

§  464.  Implied  assumpsit — Waiving  a  tort. — The  right  to 
•waive  a  tort,  and  to  recover  on  an  implied  assumpsit,  is  not 
to  recover  damages  for  the  tort,  but  to  recover  the  value  of  that 
which  the  wrongdoer  has  appropriated  to  his  own  use,  the  law 
implying  a  promise  to  pay  its  reasonable  value.  But  a  mere 
naked  trespass,  although  creating  a  liability  for  damages,  can- 
not be  the  basis  of  an  implied  assumpsit.^ 

The  right  to  waive  a  tort,  and  to  recover  as  on  implied  as- 
sumpsit, has  generally  been  extended  to  cases  where  there  has 
been  a  wrongful  conversion  of  property  of  one  person  to  the 
use  of  another,  whether  sold  or  not  by  the  latter,  and  also  to 
cases  where  a  trespasser  has  severed  trees  from  the  land  in 
possession  of  the  ovsmer,  or  has  quarried  stone  thereon,  and  has 
afterwards  taken  the  trees  or  stone  away,  converting  the  same 
to  his  own  use,  so  that  trover  or  replevin  would  lie.^  This 
implied  promise  is  available  in  the  case  of  personal  property 
severed  from  the  land  as  already  stated.^ 

This  rule  extends  to  those  cases  where  property  has  been  sev- 
ered from  real  estate  by  a  wrongdoer,  carried  from  the  free- 
hold, and  converted  to  his  o^vn  use;  and  the  rightful  o\^'ner 
may  sue  and  recover  its  value  as  on  an  implied  contract,  al- 
though it  may  not  be  in  harmony  with  the  principles  of  re- 
formed system  of  pleading.  No  reason  exists  why  it  should 
not  include  cases  arising  out  of  a  trespass,  to  the  extent  that 
the  property  severed  and  carried  away  is  beneficial  to  the  tres- 
passer, except  when  it  would  involve  a  trial  of  title  to  real 

1.  Downs  V.  Finnegan,  58  Minn.  547;  Deitz  v.  Sutcliffe,  80  Ky.  650; 
112,  59  N.  W.  381,  49  Am.  St.  Rep.  Lehman  v.  Schmidt,  87  Cal.  15,  25 
488.  P.  161;  Walker  v.  Duncan,  68  Wis. 

2.  Evans  v.  Miller,  58  Miss.  120;  624,  32  N.  W.  689;  Aldine  Manuf. 
Logan  V.  Wallis,  76  N. '  Car.  416;  Co.  v.  Barnard,  84  Mich.  632,  48  N. 
Toledo,  etc.  R.  R.  Co.  v.  Chew,  67  W.  280;  Blalock  v.  Phillips,  38  Ga. 
HI.  378;  Downs  v.  Finnegan,  58  216;  Isaacs  v.  Hermann,  49  Miss. 
Minn.  112,  59  N.  W.  381,  49  Am.  St.  449;  Norden  v.  Jones.  33  Wis.  600, 
Rep.  488;  Newton  Manuf.  Co.  v.  14  Am.  Rep.  782;  Andrews  v.  Bank, 
White,  53  Ga.  395 ;  Wilson  v.  Force.  26  N.  Y.  298. 

6  Johns.    (N.  Y.)    110,  5  Am.  Dec.  3.  Rowell  v.  Rees,  7  Adol.  &  El. 

195;    Goodwin   v.    Giffis,   88    N.   Y.        426;  Halleck  v.  Mixer,  16  Cal.  574; 
629:     Morford    v.    White.    53    Ind.        Budd  v.  Hiler,  27  N.  J.  L.  43. 

535 


§§    -164,  465  OPERATION    OF    CONTliACTS.  Ch.    16 

estate.^  The  right  to  waive  the  tort  and  to  recover  as  an  im- 
plied assumpsit  is  an  exception  to  the  principles  of  code  plead- 
ing, and  there  must  be  no  extension  beyond  what  is  allowed 
at  common  law.^ 

But  formerly,  and  now  in  many  jurisdictions,  it  was  held 
that  the  right  to  waive  a  tort  and  to  sue  on  the  implied  as- 
sumpsit must  be  limited  to  cases  where  goods  and  chattels  have 
been  wrongfully  taken  and  sold  by  the  wrongdoer.  The  ov^mer 
might  then  disaffirm  the  act,  and  treating  him  as  a  wrongdoer, 
sue  in  trespass,  or  he  might  affirm  the  act,  and  treating  the 
wrongdoer  as  an  agent,  claim  the  benefit  of  the  transaction.* 

But  this  former  rule  is  too  restricted;  because  under  it  a 
party  cannot  waive  the  tort  and  recover  the  value  of  the  goods 
or  chattels,  unless  the  party  converting  has  sold  them  and  re- 
ceived the  money,  or  has  taken  them  for  the  purpose  of  sale 
and  there  be  no  evidence  to  rebut  the  presumption  of  sale  and 
the  receipt  of  the  money.^ 

§  465.  Oral  agreements  to  bequeath  or  demise  property. — 

The  rule  is  well  settled,  that  where  services  are  rendered  gratu- 
itously or  without  any  view  of  compensation,  but  in  the  hope 
of  receiving  a  legacy  or  devise  from  the  person  to  whom  the 
services  are  rendered,  the  person  rendering  the  services  can 
recover  no  compensation  on  an  implied  contract.^ 

4.  Downs  V.  Finnegan,  58  Minn.  hem  Borough  v.  Ins.  Co.,  81  Pa.  St. 
112,  59  N.  W.  381,  49  Am.  St.  Kep.  445;  Strother  v.  Butler,  17  Ala. 
488;  Evans  v.  Miller,  58  Miss.  120.        733;     Fergaison     v.     Carrington,     9 

5.  Hurley  v.  Lamoreaux,  29  Barn.  &  Cr.  59;  Rodgers  v.  Maw, 
Minn.  138,  12  A.  447;  Downs  v.  15  Mees.  &  Wei.  444;  Smith  v. 
Finnegan,  582  Minn.  112,  59  N.  W.  Baker,  L.  R.  8  C.  P.  350;  Oughton 
381,  49  Am.  St.  Rep.  488;  Rus-  v.  Seppings,  1  Barn.  &  Ad.  241; 
sell  V.  Bell,  10  Mees.  &  Wei.  340.  Gilmore      v.      Wilbur,      12      Pick. 

6.  Sandren  v.  Railroad  Co.,  79  (Mass.)  120,  124,  22  Am.  Dec.  410. 
Mo.  278 ;  Winchell  v.  Noyes,  23  Vt.  7.  Bethlehem  Borough  v.  Ins.  Co., 
303;     Allen     v.     Ford,     19     Pick.       81  Pa.  St.  445. 

(Mass.)    217;   Androscoggin  Water  1.  Osborn    v.    Guy's    Hospital,    2 

Power  Co.   v.   Metcalf,   65  Me.   40;  Strange,    728;    Le    Sage    v.    Couss- 

Noyes  v.  Loring,  55  Me.  408;  Paine  maker,   1  Esp.   187;   Little  v.  Daw- 

V.   McGinchey,   56   Me.   50;    Bethle-  son,  4  Dall.    (U.  S.)    Ill;   Davison 

536 


Gh.    16  IMPLIED    CONTKACTS.  §§    465, 466 

But  verbal  agreement  may  be  made  between  a  father  and 
his  child  that  the  former  will  give  the  latter  his  real  property, 
in  case  he  shall  support  the  former  until  death.  If  it  appears 
that  the  child's  services  were  rendered  to  his  father  not  gratu- 
itously, but  upon  a  distinct  understanding  between  them  that 
the  child  should  be  compensated  for  his  services,  and  that  the 
agreement  was  that  upon  the  father's  death,  provided  the  child 
continued  to  serve  the  father  during  his  life,  he  shall  receive 
the  real  estate  of  the  father,  such  an  agTcement  is  valid  in  law,^ 
and  may  be  enforced  in  equity.^ 

The  part  of  the  agreement  which  the  child  is  to  perform  is 
to  be  performed  in  praesenti,  and  that  part  to  be  performed 
by  the  father  is  to  be  performed  in  futuro.  Hence,  there  can 
be  no  uncertainty  about  the  agreement,  because  it  is  definite 
and  certain  in  every  particular.* 

§  466.  Enforcement  in  equity  and  in  law. — A  court  of  equity 
will  decree  the  specific  performance  of  an  agreement  between 
father  and  child  that  the  latter  shall  have  the  former's  real 
estate  at  his  death  provided  the  latter  supports  the  former,  upon 
the  recognized  principles  by  which  it  is  governed  in  the  exer- 
cise of  this  branch  of  its  jurisdiction.^  Courts  of  equity  will 
decree  the  specific  performance  of  agi'eements  connected  with 
testamentary  or  other  settlements.^ 

V.  Davison,   13  N.  J.  Eq.  246;   Lee  4.  Johnson  v.  Hubbell,  2  Stockt. 

V.  Lee,  6  Gill  &,  J.  (Md.)  316;  Ken-  (N.  J.)   332.     See,  also,  Graham  v. 

nard  v.   Whitson,   1   Houst.    (Del.)  Wickham,    1    DeG.    J.    &    S.    474; 

36;     Compare    Baxter    v.    Gray,    4  Hammersley  v.  De  Biel,  12  CI.  &  F. 

Scott,  N.  R.  374,  3  Man.  &  Gr.  771.  45;    De   Biel   v.   Thomson.   3   Beav. 

2.  Davison    v.    Davison,     13    N.  469. 

J.  Eq.  246;  Jacobson  v.  Le  Grange,  5.  Rivers    v.    Rivers,    3    Dessau. 

3  Johns.    (N.  Y.)    199;   Paterson  v.  (S.  Car.)   Eq.  195,  4  Am.  Dec.  609; 

Paterson,  13  Johns.  (N.  Y.)  379.  Johnson  v.  Hubbell,  2  Stockt.    (N. 


3.  Gary  v.  James,  2  Dess.  (S 
Car.)  Eq.  185,  2  Am.  Dec.  686 
Johnson  v.  Hubbell,  2  Stocht.  (N 
J.)  332,  66  Am.  Dec.  773  and  note 
Davison   v.   Davison,    13   N.   J.   Eq 


J.)  332,  66  Am.  Dec.  773  and  note. 
6.  Izard  v.  Izard,  1  Dessau.  (S. 
Car.)  Eq.  116;  Walpole  v.  Oxford, 
3  Ves.  402,  7  Term  R.  138;  Lewis 
V.  Maddocks,  6  Ves.  150;  Fortescue 


246.  v.    Hannah,    19    Ves.    71;    Jones   v. 

537 


§§  466-468  OPERATION  or  contracts.  Ch.   16 

In  the  United  States  an  action  at  law  may,  after  the 
party  dies  without  fulfilling  his  agreement,  be  maintained 
against  the  estate  or  executor  to  recover  the  value  of  the  ser- 
vices.^ And  if  the  will  provides  only  in  part  for  payment  of 
services,  an  action  is  maintained  against  the  estate  for  the 
residue.^ 

§  467.  Parol  contract. — ^Although  the  agreement  is  by  parol, 
and  land  is  to  be  conveyed,  if  there  is  a  part  performance  of 
such  a  character  as,  upon  the  principles  recognized  by  a  court 
of  equity,  will  take  a  parol  ag'reement  out  of  the  statute  of 
frauds,  then  there  is  nothing  peculiar  about  an  agreement  of 
this  kind  to  exclude  it  from  the  operation  of  those  principles.^ 
It  may  be  enforced  though  in  parol,  by  a  decree  of  specific 
performance  by  the  promisee  to  the  extent  of  irretrievably  alter- 
ing his  position,  so  that  it  would  be  a  fraud  upon  him  to  re- 
fuse the  performance  of  the  other  part  of  the  contract;^  part 
performance  takes  the  case  out  of  the  operation  of  the  statute 
of  frauds.^ 

§  468.  Necessaries  for  wife. — The  law  implies  a  contract 
that  a  husband  will  supply  his  wife  with  necessaries.     It  is 

Martin,    3   Anst.    882;    Padmore   v.  1.  Johnson  v.  Hubbell,  2  Stockt. 

Gunning,    9    Sim.    644;    Moorhouse  (N.  J.)    332,  56  Am.  Dec.  773  and 

V.    Colvin,    9    Eng.    L.   &    Eq.    136;  note;   Fuchs  v.  Fuchs,  48  Mo.  App. 

Logan  V.  Weinholt,  7  Bligh,  53,  54,  18;   Lee's  Appeal,  53  Conn.   363,  2 

2    Story    on    Eq.    786;    Johnson    v.  A.  758;   McKeegan  v.  O'Neil,  22  S. 

Hubbell,  2  Stockt.    (N.  J.)    332,  66  Car.  454;  Whitstine  v.  Wilson,  104 

Am.   Dec.   773   and  note;    Mundorff  N.    Car.   385,    10   S.   E.   471;    Com- 

V.  Kilbourn,  4  Md.  459;   Parsell  v.  pare  Ellis  v.  Cary,  74  Wis.   176,  42 

Stryker,  41  N.  Y.  480;  Robinson  v.  N.  W.  252,  4  L.  R.  A.  55,   17  Am. 

Mandell,  3  Cliflf.  C.  C.  169.  St.  Rep.   125. 

7.  Taylor  v.  Wood,  4  Lea  2.  Wright's  Appeal,  155  Pa.  St. 
(Tenn.),  504;  Frost  v.  Tarr,  53  64,  25  A.  877;  Hale  v.  Hale,  90  Va. 
Ind.  390;  Martin  v.  Wright,  13  728,  19  S.  E.  739;  Pingrey  on  Real 
Wend.    (N.   Y.)    460,   28   Am.   Dec.  Estate,   1531. 

468;    Shakespeare  v.   Markham,    10  3.  Davison  v.  Davison,   13   N.  J. 

Hun   (N.  Y.),  311.  Eq.  246.     As  to  the  amendment  of 

8.  Reynolds  v.  Robinson,  64  N.  the  bill  for  variance  in  the  proof, 
Y.  589.  As  to  specific  performance,  see  Bellows  v.  Stone,  14  N.  H.  175; 
see  Pingrey  on  Real  Property,  1533.  Story  on  Eq.  PI.  394,  n.  2. 

538 


Oil.    16  IMPLIED    CONTRACTS.  §§    468,  469 

an  authority  conferred  on  the  wife  to  do  for  him  when  neces- 
sary, what  the  law  and  duty  require  him  to  do,  and  which  he 
neglects  or  refuses  to  do  for  himself,  and  is  applicable  as  well 
to  supplies  furnished  to  the  wife  "when  she  is  sick,  insensible 
or  insane,  and  to  the  care  of  her  lifeless  body,  as  to  contracts 
expressly  made  by  her.^ 

The  necessaries  for  a  married  infant  are  such  as  pertain  to 
himself  and  family ;  and  those  of  a  married  infant  to  whom 
the  law  has  intrusted  his  estate  are  such  as  pertain  to  himself, 
his  family,  and  his  estate;  the  control  of  the  estate  creates  in 
its  owner  the  capacity  to  make  such  contracts  as  are  necessary 
to  secure  its  preservation  and  beneficial  enjoyment.^  An  infant 
is  liable  for  the  necessaries  furnished  his  wife.' 

§  469.  Necessaries  for  manors  —  Money  furnished  by  an- 
other.— If  a  creditor  furnishes  money  to  a  minor,  which  he 
uses  to  purchase  necessaries,  and  the  creditor  shows  its  appli- 
cation for  the  purchase  of  necessaries,  the  minor,  in  equity, 
will  be  liable ;  or  wdiere  a  person  lends  money  to  a  minor  to 
pay  a  debt  incurred  for  necessaries,  and  the  debt  is  actually 
paid,  he  will  stand  in  equity  in  the  place  of  the  original 
creditor,  and  the  minor  will  be  liable  to  him.* 

1.  Cunningham  v.  Reardon,  98  Phelps  v.  Worcester,  11  N.  H.  51; 
Mass.  538,  96  Am.  Dec.  670;  Tur-  Grace  v.  Hale,  2  Humph.  (Tenn.) 
ner  v.  Frisby,  1  Strange,  168;  Can-  27,  36  Am.  Dec.  296;  Cunningham 
tine  V.  Phillips,  5  Harr.  (Del.)  428;  v.  Irwin,  7  Serg.  &  R.  (Pa.)  247, 
Read  v.  Legard,  6  Exch.  636 ;  Chap-  10  Am.  Dec.  458  and  note ;  Carpen- 
ple  V.  Cooper,  13  Mees.  &  Wei.  252.  ter    v.     Carpenter,     45     Ind.     142; 

2.  Chapman  v.  Hughes,  61  Miss.  Peters  v.  Fleming,  6  Mees.  &  Wei. 
339.  42;    Burghart  v.   Hall,   4  Mees.   & 

3.  Williams    v.    Harrison,    Holt,  Wei.  727. 

359;    Clowes  v.  Brooke, -2   Strange,  4.  Harris  v.  Lee,  1  P.  Wm.  482 

1101;   Hands  v.  Slaney,  8  Term  R.  Jlarlow  v.  Pittsrield,  1  P.  Wm.  558 

578;  Beeler  V.Young,  1  Bibb  (Ky.),  Darby    v.    Boucher,    1    Salk.  279 

519;     Stanton    v.    Wilson,    3    Day  Ellis   v.    Ellis,    1    Ld.    Raj-m.    344 

(Conn.),  37,  3  Am.  Dec.  255;  Price  Clarke  v.  Leslie,  5   Esp.  28;    Conn 

V.    Sanders,    60   Ind.    310;    Bent   v.  v.  Coburn,  7  N.  H.  368,  26  Am.  Dec. 

Manning,  10  Vt.  225;  Mason  v.  746;  Price  v.  Sanders,  60  Ind.  310. 
Wright,     13     Met.      (Mass.)      306: 

539 


§    470  OPERATION    OF    CONTEACTS.  Cll.     16 

§  470.  Father  liable  for  necessaries  for  minor  children. — - 

A  father  is  entitled  by  law  to  the  services  and  earnings  of  his 
minor  children.  This  right  is  founded  upon  the  obligation 
which  the  law  imposes  upon  him  to  nurture,  support  and  edu- 
cate them  during  infancy  and  early  youth,  and  it  continues 
until  their  majority,  when  the  law  determines  that  they  are 
capable  of  providing  for  themselves.^  This  is  upon  the  ground 
of  agency.^  But  a  minor  who  voluntarily  abandons  his  father's 
house,  without  any  fault  of  the  parent,  carries  with  him  no 
credit  on  his  father's  account  even  for  necessaries.^ 

So,  also,  when  necessaries  are  furnished  by  the  town  to 
minor  children  between  whom  and  their  father,  though  they 
live  apart,  the  parental  and  filial  relations  still  subsist,  such 
supplies  are  considered  in  law  supplies  indirectly  furnished 
the  father,  because  he  is  bound  in  law  to  support  them.'' 

But  in  'New  Hampshire  and  Vermont  it  is  held  that  a  parent 
is  under  no  legal  obligation,  independent  of  statutory  provi- 
sion, to  maintain  his  minor  child,  and  that  in  the  absence  of 
any  contract  on  the  part  of  the  father,  he  cannot  be  held  except 
under  the  pauper  laws  of  those  States.^ 

During  the  life  of  the  father,  the  mother,  in  the  absence  of 
statutory  provisions,  or  decree  relating  thereto,  not  being  en- 
titled to  the  services  of  their  minor  children,  is  not  bound  by 
law  to  support  them,® 

1.  Benson  v.  Remington,  2  Mass.  Ryder,   11   Paige    (N.  Y.),   185,  42 

113;  Dawes  v.  Howard,  4  Mass.  98;  Am.  Dec.  109. 

Nightingale      v.      Withington,      15  2.  Reynolds  v.  Sweetser,  15  Gray 

Mass.   274,  8  Am.  Dec.   101;    State  (Mass.),  80;  Hall  v.  Wier,  1  Allen 

V.   Smith,  6  Me.   462,  464,   20  Am.  (Mass.),   261;    Camerlin  v.   Palmer 

Dee.  324  and  note;  Dennis  v.  Clark,  Co.,  10  Allen    (Mass.),  539. 

2  Cush.    (Mass.)    252;   Reynolds,  v.  3.  Weeks  v.  Merrow,  40  Me.  151; 

Sweetser,    15    Gray     (Mass.),    80;  Angel  v.  McLellan,  16  Mass.  27. 

Garland  v.  Dover,   19  Me.  441,  36  4.  Garland  v.  Dover,  19  Me.  441. 

Am.    Dec.    732;    Van    Valkenburgh  5.  Kelley  v.  Davis,  49  N.  H.  187, 

V.  Watson,  13  Johns.    (N.  Y.)   480,  6  Am.  Rep.  499;  Gordon  v.  Potter, 

7    Am.   Dec.    395;    Furman   v.   Van  17  Vt.  348. 

Sise,   56   N.   Y.    435,    15   Am.   Rep.  6.  Whipple  v.  Dow,  2  Mass.  415 

441;  People  v.  Moores,  4  Denio   (N.  Dawes    v.    Howard,    4    Mass.    97 

Y.),  518,  47   Am.  Dec.   272;    In  re  Weeks    v.    Merrow,    40    Me.     151 

540 


Ch.     16  IMPLIED    CONTRACTS.  §§    470,  471 

This  liability  of  the  father  would  seem  to  cease  when  a 
decree  of  divorce  is  rendered  dissolving  the  marriage  relations 
and  committing  the  custody  of  the  minor  children  to  the 
mother.  For  when  such  a  decree  is  made  then  the  father  will 
have  no  right,  either  to  take  them  into  his  custody  and  sup- 
port them  or  employ  any  one  else  to  do  so,  without  the  con- 
sent of  the  mother.''  But  some  courts  hold  that  the  father  is 
liable  for  the  support  of  his  minor  children  after  their  custody 
is  decreed  to  the  mother.* 

If  the  custody  of  the  children  is  not  decreed  to  the  wife, 
then  the  father  is  liable  for  the  support  of  his  minor  children.' 

The  mother  may  maintain  an  action  against  the  father  for  the 
necessary  support  of  their  minor  children,  furnished  by  her 
after  an  absolute  divorce,  no  decree  for  custody  or  alimony 
having  been  made.^*^ 

A  father  may  contract  with  his  minor  child  and  pay  him 
wages  ;^^  he  may  emancipate  the  child,^^  give  him  his  earn- 
ings, ^^  goods  and  other  chattels.^^ 

§  471.  Necessaries  for  insane  persons. — Insane  persons  are 
liable  for  necessaries  furnished  them.^  If  one  furnishes  an 
insane  person  necessaries,  which  are  required  for  his  support 
or  comfort,  and  suitable  to  his  means,  condition,  and  habits 
of  life,  and  which  he  has  not  already  in  his  keeping,  the  seller 

Gilley  v.  Gilley,  79  Me.  292,  9  A.  10.  Gilley  v.  Gilley,  79  Me.  292, 

623,  1  Am.  St.  Rep.  307.  9  A.  623,  1  Am.  St.  Rep.  307. 

7.  Hancock  v.  Merrick,  10  Gush.  11.  Titman  v.  Titman,  64  Pa.  St. 
(Mass.)  41;  Brown  v.  Brightman,  480,  3  Am.  Rep.  608;  Wilson  v.  Mc- 
136  Mass.  187;  FincH  v.  Finch,  22  Millan,  62  Ga.  16,  35  Am.  Rep. 
Conn.  410.  115  and  note. 

8.  Holt  V.  Holt,  42  Ark.  495;  12.  Farrell  v.  Farrell,  3  Houst. 
Courtwright     v.     Courtwright,     40  (Del.)   633. 

Mich.   633;    Plaster   v.    Plaster,   47  13.  Monaghan  v.  School  Dist.,  38 

HI.  290.  Wis.  100. 

9.  Finch  v.  Finch,  22  Conn.  411;  14.  Smith  v.  Smith,  7  Carr.  &  P. 
Hancock     v.     Merrick,      10     Cush.  401. 

(Mass.)    41;    Brown   v.   Brightman,  1.  Baxter  v.  Portsmouth,  5  Barn. 

136    :Mass.    107;    Husband   v.    Hus-        &   Cr.    172;    Thompson  v.   Leach,   3 
band,  67  Ind.  583,  33  Am.  Rep.  101.        Mod.  310. 

541 


§§    471-473  OPEKATION    OF    CONTRACTS.  Ch.    16 

can  recover  of  the  insane  party  upon  a  promise  implied  hj 
law,  what  the  supplies  are  reasonably  worth. ^ 

Insane  persons  stand  in  the  position  as  minors  and  are  liable 
for  necessaries.^     Such  is  the  rule  of  the  common  law. 

§  472,  Liability  of  insane  person's  estate. — The  estate  of 
the  insane  is  legally,  as  well  as  equitably,  liable  for  necessaries 
furnished  in  good  faith,  and  under  circumstances  justifying 
their  being  so  furnished.* 

Other  contracts  with  lunatics  not  strictly  for  necessaries, 
which  have  been  fully  executed,  and  on  which  a  considera- 
tion or  benefit  to  the  lunatic  has  been  given,  may  be  within 
the  reason  of  this  exception,  where  the  transaction  is  shown 
to  be  perfectly  fair  and  reasonable,  at  least,  so  far  as  to  allow 
the  recovery  back  of  the  consideration  given,  or  to  prevent  a 
rescission  by  the  lunatic  or  his  representatives,  without  restor- 
ing the  consideration,  when  the  restoration  is  practicable.  The 
liability  of  a  lunatic  in  such  cases  is  upheld,  not  on  the  ground 
of  contract,  but  on  the  fact  that  the  lunatic  has  received  and 
enjoyed  an  actual  benefit  from  the  contract.^ 

§  473.  Part  performance — Quantum  meruit. — Many  English 
and  American  cases  hold  that  no  recovery  can  be  had  for  labor 

2.  Leach  v.  Marsh,  47  Me.  548,  County  Nat.  Bank  v.  Moore,  78  Pa. 
74  Am.  Dec.  403;  Pearl  v.  Mc-  St.  407,  21  Am.  Rep.  24  and  note. 
Dowell,  3  J.  J.  Marsh.  (Ky.)  658;  5.  Gore  v.  Gibson,  13  Mees.  & 
Sawyer  v.  Lufkin,  56  Me.  308.  VVel.   626;    Lincoln   v.   Buckmaster, 

3.  Seaver  v.  Phelps,  11  Pick.  32  Vt.  658;  Brown  v.  Jodrell,  3 
(Mass.)  304,  22  Am.  Dec.  372;  Car.  &  P.  30;  Dane  v.  Kirkwall,  8 
Leach  v.  Marsh,  47  Me.  548,  74  Car.  &  P.  675;  Niell  v.  Morley,  9 
Am.  Dec.  503.  See,  also,  Williams  Ves.  478;  Selby  v.  Jackson,  6  Beav. 
V.  Wentworth,  5  Beav.  325;  Rich-  192;  Matthiesson  v.  McMahon,  38 
ardson  v.  Strong,  13  Ired.  (N.  Car.)  N.  J.  L.  536;  Wilder  v.  Weakley, 
106,  55  Am.  Dec.  430.  34  Ind.  181;  Behrans  v.  McKenzie, 

4.  McCrillis  v.  Bartlett,  8  N.  H.  23  Iowa,  333,  92  Am.  Dec.  428;  Ab- 
569;  Sawyer  v.  Lufkin,  56  Me.  308;  hott  v.   Creal,   56   Iowa,    175,   9   N. 
La  Rue  v.  Gilkyson,  4  Pa.  St.  375,  115;   Sims  v.  McLure,  8  Rich.  Eq. 
45  Am.  Dec.  700;   Baxter  v.  Ports-  (S.  Car.)   286,  70  Am.  Dec.  196. 
mouth,  2  Car.  &  P.  178;  Lancaster 

542 


Oh.    16  IMPLIED    CONTRACTS.  §    473 

or  material  furnished  uuder  special  contract,  unless  the  con- 
tract has  heen  performed,  or  its  performance  has  been  dis- 
pensed with  by  the  otlier  party.^ 

The  hardship  of  this  rule  upon  the  contractor  who  has  unde- 
signedly violated  his  contract,  and  the  inequitable  advantage 
it  gives  to  the  party  who  receives  and  retains  the  benefit  of  his 
labor  and  materials,  has  led  to  its  qualification  so  that  now  the 
weight  of  authority  is  clearly  in  favor  of  allowing  compensa- 
tion for  services  rendered  and  material  furnished,  under  a 
special  contract,  but  not  in  entire  conformity  with  it,  provided 
the  deviation  from  the  contract  was  not  wilful  and  that  the 
other  party  has  availed  himself  of,  and  been  benefited  by,  such 
labor  and  materials ;  and  as  a  general  rule  the  amount  of  such 
compensation  is  to  depend  upon  the  extent  of  the  benefit  con- 
ferred, having  reference  to  the  contract  price  for  the  entire 
work.^ 

There  is  a  line  of  cases  that  holds  that  when  a  contract  re- 
mains open  and  unperformed,  though  in  slight  particulars, 
no  recovery  can  be  had  either  upon  it  or  upon  an  implied 
contract.^ 

Another  line  of  cases  holds  that  recovery  upon  such  and 
similar  contracts  will  not  be  refused  for  mere  technical,  inad- 
vertent or  unimportant  deviations  from  the  terms,  but  that 
wherever  there  has  been  a  substantial  compliance  with  the 
contract,   recovery  may  be  had   thereon,   a  proper  allowance 

1.  Cohn  V.  Plumer,  88  Wis.  622,  liam  v.  Bryant,  139  Mass.  110,  28 
60  N.  W.  1000;  Succession  of  Jack-  N.  E.  691;  Blood  v.  Wilson.  141 
son,  47  La.  Ann.  1089,  17  So.  598;  Mass.  25,  6  N.  E.  362;  Kelly  v. 
Dawes  v.  Hubbard.  41  Wis.  408;  Bradford,  33  Vt.  35;  Corwin  v. 
Palm  V.  Railroad  Co.,  18  111.  217;  Wallace,  17  Iowa,  374;  White  v. 
United  States  v.  Behan,  110  U.  S.  Oliver,  36  Me.  92;  Dermott  v.  Jones, 
339,  4  S.  Ct.  81.  20    How.     (U.    S.)    220;    Smith   v. 

2.  Hay  ward  v.  Leonard,  7  Pick.  School  Dist.,  20  Conn.  312;  Blakes- 
(Mass.)  181,  19  Am.  Dec.  268  and  lee  v.  Holt,  42  Conn.  226;  Lucas  v. 
note;  Smith  v.  Meeting  House.  8  Gadwin.  3  Bing.  N.  C.  104;  Pinches 
Pick.  (Mass.)  178;  Moulton  v.  Mc-  v.  Church,  55  Conn.  183,  10  A.  264. 
Owen,  103  Mass.  591;  Reid  v.  Scit-  3.  Ellis  v.  Hamlen,  3  Taunt.  53; 
uate,  7  Allen  (Mass.),  141;  Atkins  Munro  v.  Butt,  8  El.  &  Bl.  738. 

V.  Barnstable,   97  Mass.  428;    Den- 

543 


§§    473,  474  OPERATION    OF    CONTRACTS.  Ch.    16 

or  reduction  from  the  contract  price  being  made  for  defi- 
ciency.^ 

One  class  of  cases  holds  that  a  recovery  should  be  had  in 
such  cases  whenever  the  work  and  materials  are  of  any  value 
to  the  owner  of  the  lands  to  which  they  have  been  affixed,  and 
that  the  proper  measure  of  damages  is  the  contract  price,  de- 
ducting therefrom  so  much  as  the  building  was  worth,  less  on 
account  of  variations  from  the  contract,^ 

Another  class  holds  that  while  a  contractor  guilty  of  fraud 
or  having  wilfully  abandoned  the  work  unfinished,  cannot  re- 
cover in  any  form  of  action,  he  may  recover  in  assumpsit 
when  he  has,  in  good  faith,  done  work  which,  though  not  done 
according  to  the  contract,  has  been  accepted  by  the  owner.® 

In  each  class  of  cases  acceptance  is  the  basis  of  recovery. 
One  class  requires  the  acceptance  to  be  actual ;  this  assumes 
it  to  exist  in  all  cases  where  value  has  been  conferred  upon 
the  property,  and  there  has  been  no  gross  or  fraudulent  viola- 
tion of  the  contract;  where  such  a  violation  occurs,  actual 
acceptance  is  necessary  to  recovery.^ 

§  474.  Wilful  default — Wages. — The  weight  of  authority  is 
that  if  a  party  wilfully  abandons  a  special  contract  before  it 
is  fully  performed,  he  can  recover  nothing  for  what  he  has 
done.-''  So  where  a  contractor  abandons  work  before  its  comple- 
tion, he  cannot  recover  in  an  action  upon  the  contract,  unless 

4.  Glacius  v.  Black,  50  N.  Y.  145,  (Mass.)  267,  13  Am.  Dec.  425;  Gill 
10  Am.  Rep.  449;  Cutter  v.  Close,  v.  Vogler,  52  Md.  663;  Moritz  v. 
5  Car.  &  P.  337;  Dallman  v.  King,  Larsen,  70  Wis.  569,  36  N.  W.  331; 
4  Bing.  N.  C.  105;  Stodhard  v.  Lee,  Hansell  v.  Erickson,  28  111.  257; 
3  Best  &  S.  364.  Seheible  v.  Klein,  89  Mich.  376,  50 

5.  Hajrward  v.  Leonard,  7  Pick.  N.  W.  857;  Olmstead  v.  Beale,  19 
(Mass.)  180;  Smith  v.  Church,  8  Pick.  (Mass.)  528;  Miller  v.  God- 
Pick.   (Mass.)   178.  dard,  34  Me.  102,  56  Am.  Dec.  638; 

6.  Dermott  v.  Jones,  2  Wall.  (U.  Kryer  v.  Lippel,  42  Minn.  6,  43  N. 
S.)    1.  W.  484;   Gillespie  Tool  Co.  v.  Wil- 

7.  Bozarth  v.  Dudley,  44  N.  J.  L.  son,  123  Pa.  St.  19,  16  A.  36;  Peter- 
304,  43  Am.  Rep.  373.  son  v.  Neazer,  46  Minn.  468,  49  N. 

1.  Denmead   v.    Coburn,    15    Md.        W.    245;     Hapgood    v.    Shaw,    105 
44;    Faxon    v.    Mansfield,    2    Mass.        Mass.  276. 
147;     Stark     v.     Parker,     2     Pick. 

544 


Ch.    16  IMPLIED    CONTRACTS.  §    474 

he  was  prevented  from  completing  it  by  the  wrongful  action 
of  the  defendant.^ 

In  general,  to  i-ecover  on  a  special  contract,  the  plaintiff 
must  show  full  performance  on  his  part  or  a  release  by  his 
employer  or  some  justifying  cause  for  non-performance.^ 

But  there  are  many  decisions  which  hold  that  one  who  has 
performed  services  for  another  under  a  special  contract  may 
recover  for  the  value  of  the  services  rendered,  though  he  may 
not  have  fully  completed  his  term  of  service,  subject  to  the 
right  of  the  employer  to  deduct  any  damages  he  may  have 
sustained  by  the  breach  of  the  contract  on  the  part  of  the  em- 
ployee.'* This  doctrine  has  gradually  been  adopted  by  the 
courts.  It  stands  on  justice,  and  is  right  on  principle,  though 
opposed  to  the  common  law  rule,  which  holds  that  the  ser- 
vant cannot  recover,  unless  he  shows  that  he  has  performed 
the  contract  in  full. 

If  a  single  woman  engages  to  work  and  take  care  of  a  man 
during  his  life  and  then  to  receive  compensation,  and  agrees 
not  to  marry,  the  agreement  not  to  marry  is  only  incident  to 
the  main  contract  which  is  valid,  and  she  can  recover  from 
the  estate  of  the  promisor  after  his  death. ^     If  there  is  no  pro- 

2.  Scheible  v.  Klein,  89  Mich.  66;  McAflferty  v.  Hall,  24  Iowa, 
376,  50  N.  W.  857.  382 ;    Byerlee   v.   Mendel,   39   Iowa, 

3.  Eldridge  v.  Rowe,  2  Gil.  (111.)  382;  Duncan  v.  Baker,  21  Kan.  99; 
98,  43  Am.  Dec.  41;  Swanzey  v.  Parcell  v.  McComber,  11  Neb.  209, 
Moore,  22  111.  63,  74  Am.  Dec.  134;  7  N.  529,  38  Am.  Rep.  366  and  note; 
Thrift  V.  Payne,  71  111.  408.  See,  Bedow  v.  Tonkin,  5  S.  Dak.  432,  59 
also,  Lantry  v.  Parks,  8  Cow.  (N.  N.  W.  222;  Hillyard  v.  Crabtree,  11 
Y.)  63;  Catlin  v.  Tobias,  26  N.  Y.  Tex.  264,  62  Am.  Dec.  475;  Cham- 
217,  84  Am.  Dec.  183;  Champlin  v.  blee  v.  Baker,  95  N.  Car.  98;  Car- 
Rowley,  18  Wend.  (N.  Y.)  187;  roll  v.  Welch,  26  Tex.  147;  Hellis 
Timberlake  v.  Thayer,  71  Miss.  279,  v.  Chapman,  36  Tex.  1;  Epperly  v. 
14  So.  446,  24  L.  R.  A.  231  and  Bailey,  3  Ind.  73;  Fenton  v.  Clark, 
note;  Newcomb  a\  Ins.  Co.,  51  Fed.  11  Vt.  560;  Ryan  v.  Dayton,  25 
Rep.  725.  Conn.  188,  65  Am.  Dec.  560;  Wolf 

4.  Britton  v.  Turner,  6  N.  H.  v.  Gerr,  43  Iowa,  339.  See,  also, 
481,  26  Am.  Dec.  713;  Pixler  v.  Lamb  v.  Bralaski,  38  Mo.  51;  Pat- 
Michols,  8  Iowa,  106,  74  Am.  Dec.  note  v.  Sanders,  41  Vt.  66,  98  Am. 
298;    Lomen  v.   Grossman,  8   Iowa,  Dec.  564. 

325;    McClay  v.   Hedges,   18   Iowa,  5.  King  v.  King,  63  Ohio  St.  363, 

545 


§§    474,  475  OPEEATION    OF    CONTRACTS.  Ch.    16 

vision  against  her  marriage,  and  she  does  marry,  then  it  is 
a  question  of  fact  whether  she  has  broken  her  contract,  and 
whether  she  can  recover  if  discharged  by  her  employer.®  But 
if  the  contract  had  provided  that  the  woman  should  remain 
unmarried,  then  there  is  no  reason  why,  if  she  marries,  it  will 
not  rescind  the  contract.  On  general  principles,  an  employer 
may  provide  in  the  contract  that  the  employee  shall  remain 
single  while  engaged  in  the  service. 

§  475.  Default  not  wilful — Personal  service. — Contracts  for 
personal  service,  whether  of  the  contracting  party  or  of  a  third 
person,  requiring  skill,  and  which  can  only  be  performed  by 
the  particular  individual  named,  are  not  in  their  nature,  of 
absolute  obligation  under  all  circumstances.  Both  parties  must 
be  supposed  to  contemplate  the  continuance  of  the  ability  of 
the  person  whose  skilled  services  are  the  subject  of  the  con- 
tract, as  one  of  its  conditions. 

Contracts  for  personal  services  are  subject  to  this  implied 
condition,  that  the  person  shall  be  able  at  the  time  appointed 
to  perform  them,  and  if  he  dies,  or  without  fault  on  the  part 
of  the  covenantor  becomes  disabled,  the  obligation  to  perform 
is  extinguished.^ 

If  the  default  is  caused  by  death,  sickness  or  by  prevention 
of  the  other  party,  or  by  any  cause  for  which  he  is  not  re- 
sponsible, which  excuses  the  performance,  then  he  may  recover 
in  an  action  of  quantum  meruit  on  an  implied  promise  to  pay 
for  work  already  completed.^ 

59  N.  E.  Ill,  52  L.  R.  A.   157,  81  Murray,    3    Johns.     (N.    Y.)     167; 

Am.  St.  Rep.  635.  Robinson  v.  Davison,  L.  R.  6  Exch. 

6.  Edgecomb    v.     Buckliout,     146  268;  Dexter  v.  Norton.  47  N.  Y.  62, 

N.  Y.  332,  40  N.  E.  991,  28  L.  R.  A.  7  Am.  Rep.  415;   Spalding  v.  Rosa, 

816.  71  N.  Y.  40,  27  Am.  Rep.  7;  Lake- 

1.  People  V.  Manning,  8  Cow.  (N.  man  v.  Pollard,  43  Me.  463;  Green 

Y.)  297,  18  Am.  Dec.  451  and  note;  v.  Gilbert,  21  Wis.  395;  Martus  v. 

Jones  V.  Judd,  4  N.  Y.  411;   Clark  Houck,  39  Mich.  431,  33  Am.  Rep. 

V.   Gilbert,   26   N.   Y.   279,   84   Am.  409. 

Dec.  189;  Wolfe  v.  Howes,  24  Barb.  2.  Shulz  v.   Johnson,   5   B.   Mon. 

(N.  Y.)   174,  20  N.  Y.  197;  Gray  v.  (Ky.)    497;   Pinches  v.  Church,  55 

546 


Ch.    16  IMPLIED    CONTRACTS.  §§    476,  477 

§  476.  Promise  to  marry. — The  usual  and  legitimate  objects 
to  be  sought  to  be  attained  by  agreement  to  marry,  are  the 
comfort  of  association,  the  consoHium  vitae.  And  if  either 
party  should  thereafter  become,  by  the  act  of  God  and  without 
fault  on  his  own  part,  unfit  for  such  a  relation  and  incapable 
of  performing  the  duties  incident  thereto,  then  the  law  will 
excuse  a  non-compliance  with  the  promise,^ 

§  477.  Substantial  performance. — It  is  held  by  many  courts 
that  where  a  contract  has  been  substantially  though  not  strictly 
performed,  where  the  party  failing  to  perform  according  to 
the  terms  of  the  contract  has  not  been  guilty  of  a  voluntary 
abandonment  or  wilful  departure  from  the  contract,  has  acted 
in  good  faith,  intending  to  perform  the  contract  according  to 
its  stipulations,  but  has  failed  in  a  strict  compliance  with  its 
provisions,  and  where  from  the  nature  of  the  contract  and  of 
the  labor  performed,  the  parties  cannot  rescind,  and  stand  in 
statu  quo,  but  one  of  them  must  derive  some  benefit  from  the 
labor  or  money  of  the  other, — in  such  case  the  party  failing 
to  perform  his  contract  strictly  may  recover  of  the  other,  as 
upon  a  quantum  meruit,  for  such  a  sum  only  as  the  contract 
as  performed  has  been  of  real  and  actual  benefit  to  the  other 
party,  estimating  such  benefit  by  reference  to  the  contract  price 
of  the  whole  work.^  If  he  has  performed  in  good  faith  and 
substantially  completed  the  contract,  he  can  recover.^ 

Conn.  183,  10  A.  264;  Yerrinton  v.  Car.  297;  Allen  v.  Baker,  86  X.  Car. 

Green,  7  R.  I.  589,  84  Am.  Dec.  578;  Dl,  decided  under  a  statute. 
Mooney  v.  Iron  Co.,  82  Mich.  263,  1.  Dyer  v.  Jones,  8  Vt.  205;  Gil- 

46  N.  W.  376;  Adams  v.  Crosby,  48  man  v.   Hall,    11   Vt.   510,   34   Am. 

Ind.    153;    Hubbard   v.    Belden,    27  Dec.  700;  Kelly  v.  Bradford,  33  Vt. 

Vt.  645;  Harrington  v.  Iron  Works,  85;  Blood  v.  Wilson,  141  Mass.  25, 

119  Mass.  82;  Stewart  v,  Loring,  5  6  N.  E.  362;  Dermott  v.  Jones,  23 

Allen    (Mass.),    306,    81    Am.    Dec.  How.  (U.S.)  220;  Parker  v.  Steed, 

747;     Fuller    v.    Brown,     11     Met.  1  Lea  (Tenn.),  206;  Taylor  v.  Wil- 

( Mass.)  440;  Scully  V.  Kirkpatrick,  liams,    6    Wis.    363;    McMillan    v. 

79  Pa.  St.  324.  21  Am.  Rep.  62.  Mallay,  10  Neb.  228,  4  N.  1004,  35 

a.  Pollock   on    Cont.    370.      Com-  Am.   Rep.   471   and  note;    Haj^vard 

pare  Hall  v.  Wright,  El.,  Bl.  &  El.  v.    Leonard,   7    Pick.    (jNIass.)    181, 

746,   which   is    not   authority   now.  19  Am.  Dec.  268  and  note;   Corwin 

See,  also,  Barnes  v.  Brown,  69  N.  v.  Wallace,  17  Iowa,  374. 
Car.  439;   Shuler  v.  Millsap,  71  N.  2.  White   v.   Oliver,   36   Me.    92; 

547 


§§    477,  478  OPERATION    OF    CONTRACTS.  Ch.    16 

But  this  doctrine  is  not  accepted  in  full,  but  is  modified  by 
some  courts.  The  mere  fact  that  a  partial  performance  is 
beneficial  to  a  party  is  not  enough  from  which  to  imply  a 
promise  to  pay  for  it.  That  the  doctrine  of  substantial  com- 
pliance with  the  contract  does  not  apply  when  the  omissions 
or  departures  from  the  contract  are  intentional,  and  so  sub- 
stantial as  to  be  incapable  of  remedy  so  that  an  allowance  out 
of  the  contract  price  would  not  give  the  owner  essentially  what 
he  contracted  for.^ 

So  in  case  of  a  building  on  land  under  a  contract  which  the 
builder  fails  to  complete,  or  which  he  completes  in  a  manner 
not  conforming  to  the  contract,  so  that  the  owner  cannot  be 
charged  with  the  contract  price,  the  mere  fact  of  the  building 
remaining  on  the  land,  and  that  the  owner  resumed  possession 
and  enjoys  the  fruits  of  the  labor,  is  not  such  an  acceptance 
as  alone  will  imply  a  promise  to  pay  for  it;  for  the  posses- 
sion of  the  land  necessarily  involves  possession  of  the  build- 
ings in  their  existing  state,  and  the  owner  has  no  option  of 
rejecting  them.'* 

§  478.  Order  given  by  one  and  filled  by  another. — To  sup- 
port a  recovery  for  goods  sold  and  delivered,  there  must  be  a 
contract,  either  express  or  implied,  between  the  persons  that 
ordered  and  the  one  who  supplied  the  goods.  Where  goods 
ordered  of  one  person  are  supplied  by  another,  the  acceptance 
and  use  of  the  goods  without  notice  that  they  have  been  so 
supplied  will  not  create  that  privity  of  contract  between  the 
person  ordering  the  goods  and  the  one  who  thus  supplies  them, 
which  is  essential  to  support  an  implied  assumpsit.-^ 

Lucas    V.    Godwin,    3    Bing.    N.    C.  18   Wend.    (N.  Y.)    187;   Munro  v. 

773 ;    Blakeslee   v.    Holt,   42    Conn.  Butt,  8  El.  &  Bl.  738. 
226;    Pinches  v.   Church,   55   Conn.  4.  Munro  v.  Butt,  8  EI.  &  BI.  738. 

183,  10  A.  264.  See,    also,    Bozarth    v.    Dudley,    44 

3.  Elliott  V.   Caldwell,   43   Minn.  N.    J.    L.    304,    43    Am.    Rep.    378; 

357,  45  N.  W.  845;  Smith  v.  Brady,  Miller  v.  Phillips,  31  Pa.  St.  218. 
17   N.   Y.    173,   72   Am.    Dec.   442;  1.  Hills  v.  Snell,  104  Mass.  173, 

Catlin  V.  Tobias,  26  N.  Y.  217,  84  6  Am.  Rep.  216;  Boston  Ice  Co.  v. 

Am.  Dec.  183;  Champlin  v.  Rowley,  Potter,   123  Mass.  28,  25  Am.  Rep. 

548 


Cll.    16  IMPLIED    CONTRACTS.  §    478 

If  the  person  ordering  the  goods  receives  notice  before  the 
goods  are  appropriated  or  converted  that  they  have  been  thus 
furnished  by  another,  and  is  also  notified  that  they  are  furnished 
upon  such  terms  as  impart  that  the  person  supplying  the  goods 
contemplated  a  sale  upon  terms  stated,  and  the  person  who  sent 
the  order  afterwards  receives  and  appropriates  them,  he  there- 
by assents  to  and  satisfies  the  filling  of  the  order,  and  such 
assent  and  ratification  relate  back  and  give  the  order  the  same 
effect  as  if  it  had  been  originally  given  to  the  person  who 
filled  it^ 

If  a  vendee  receives  a  part  of  the  goods  purchased  from 
another,  and  retains  them  after  a  failure  of  the  vendor  to  sup- 
ply the  rest  of  the  goods,  the  law  implies  a  contract  and  he 
must  pay  for  them.^ 

But  this  rule  is  not  adopted  by  all  the  courts.  Thus,  in 
"New  York,  where  goods  are  received  and  used  by  the  vendee 
under  a  contract  for  the  delivery  of  a  specified  quantity,  the 
quantity  delivered  being  less  than  that  required  by  the  con- 
tract, such  breach  is  a  bar  to  an  action  by  the  vendor  for  the 
price  of  the  goods  delivered.*  Such  a  contract  is  entire  and 
calls  for  an  entire  performance,  and  until  performance  is  made 
or  tendered  there  is  no  liability  on  the  part  of  the  defendant; 
where  the  vendor  refused  to  perform  the  contract,  without  ex- 
cuse, the  vendee  is  not  boimd  to  return  what  he  has  received, 
nor  can  he  be  compelled  to  pay  for  a  part  performance.^ 

The  vendee  under  such  a  contract  has  a  right  to  expend  the 
goods  delivered  as  required  in  his  business,  without  waiting 
for  the  expiration  of  the  time  for  delivery  of  all  the  goods  to 
see  whether  the  vendor  will  fully  perform  his  contract,  and 

9;  Boulton  v.  Jones,  2  Hurl.  &  N.  dale   v.   Wetherell,   9   Barn.   &   Cr. 

564.  386. 

2.  Orcutt     V.     Nelson,     1     Gray  3.  Shipton  v.  Casson,  5  Barn.  & 

(Mass.),   536;    Mudge  v.   Oliver,    1  Cr.   378;    Oxendale  v.   Wetherell,   9 

Allen  (Mass.),  74;  Wellaner  v.  Fel-  Barn.  &  Cr.  386. 

lows,    48    Wis.    105,    41    N.    114;  4.  Catlin  v.  Tobias,  26  N.  Y.  217, 

Barnes  v.  Shoemaker,  112  Ind.  512,  84  Am.  Dec.  183. 

14  N.  E.  367.     See,  also,  Shipton  v.  5.  Smith  v.  Brady,  17  N.  Y.  173, 

Casson,  5   Barn.  &  Cr.   378;    Oxen-  72  Am.  Dec.  442. 

549 


§§    478,  479  OPERATION    OF    CONTRACTS.  Ch.    16 

such  use  is  no  waiver  of  his  defense  in  case  of  the  vendor's 
breach  of  contract.® 

§  479.  Part  performance  under  a  void  contract. — An  action 
may  he  maintained  for  the  reasonable  value  of  work  done  under 
a  void  contract,  as  the  law  will  imply  a  contract  for  the  pay- 
ment of  a  reasonable  compensation  for  such  work.^  And  so, 
though  a  parol  contract  for  the  conveyance  of  land  for  ser- 
vices to  be  rendered  may  not  be  enforced,  an  action  may  be 
maintained  to  recover  the  value  of  the  services  performed  under 
it,  if  services  are  rendered  in  good  faith  and  the  vendor  accepts 
them,  the  vendee  may  recover  on  a  quantuyn  meruit.^ 

And  so  recovery  on  quantum  meruit  may  be  had  for  labor 
and  services  performed  under  a  contract  void  by  the  statute  of 
frauds.^  In  general,  it  is  held  that  a  party  who  delivers  goods, 
or  conveys  land,  or  renders  services  for  another  under  a  con- 
tract which  is  void  or  unenforceable,  but  not  illegal,  may  re- 
cover on  a  quantum,  meruit.* 

And  so  where  a  contract  under  seal  containing  mutual  cove- 
nants, and  which  imposes  an  obligation  upon  one  party  to  pay 
money  to  the  other,  but  contains  no  covenant  or  promise  to 
pay  it,  the  contract  having  been  wholly  performed  in  all  other 
respects,  the  money  may  be  recovered  in  an  action  upon  an  im- 
plied promise.^ 

6.  Catlin    v.    Tobias,    26    N.    Y.  N.  E.  132;  Baker  v.  Lauterbach,  68 

217,  84  Am.  Dec.  183.  Md.  64,  11  A.  703. 

1.  Rebman  v.  Land  Water  Co.,  3.  Lapham  v.  Osborne,  20  Nev. 
95  Cal.  390,  30  P.  564;  Holland  v.  168,  18  P.  881;  Smith  v.  Woodin, 
Wilson,  76  Cal.  434,  18  P.  412;  20  Ala.  324;  Montague  v.  Garnett, 
Nugent  V.  Teachout,  67  Mich.  571,  3  Bush  (Ky.),  297;  Walker  v. 
35  N.  W.  254;  Cadman  v.  Markle,  Shackelford,  40  Ark.  503;  Wonset- 
76  Mich.  448,  43  N.  W.  315;  Ellis  tier  v.  Lee,  40  Kans.  367,  19  P.  862; 
V.  Carey,  74  Wis.  176,  42  N.  W.  Whipple  v.  Parker,  29  Mich.  369. 
252,  4  L.  R.  A.  55,  17  Am.  St.  Rep.  4.  Cadman  v.  Markle,  76  Mich. 
125.  448,  43   N.  W.  315;    Ellis  v.  Gary, 

2.  King  V.  Brown,  2  Hill  (N.  74  Wis.  176,  42  N.  W.  252,  17  Am. 
Y.),  485;  Stevens  v.  Lee,  70  Tex.  St.  Rep.  125,  4  L.  R.  A.  55;  Lap- 
279,  8  S.  W.  40;  Schoonover  v.  ham  v.  Osborne,  20  Nev.  168,  18  P. 
Vachou,  121  Ind.  3,  22  N.  E.  777;  884. 

Miller  v.  Eldridge,  126  Ind.  461,  27  5.  Varney   v.    Bradford,    86    Me. 

550 


Ch.    16  IMPLIED    CONTRACTS.  §    480 

§  480.  Under  no  obligations  to  perform — Part  performance. 

— It  has  been  held  by  numerous  decisions  that  an  action  will 
lie  to  recover  back  money  paid  or  for  services  rendered  by  one 
party  to  an  agreement  which  is  invalid  by  the  statute  of  frauds, 
and  which  the  other  party  refuses  to  perform.^  But  the  plain- 
tiff must  bring  himself  mthin  the  rule.^  But  if  one  party 
abandons  the  contract  after  part  performance,  he  cannot  re- 
cover, if  the  other  party  is  willing  to  perform.^ 

And  so  in  many  English  cases  and  in  many  States  it  is  held, 
as  cases  already  cited  show,  that  money  paid  on  a  purchase  of 
land  cannot  be  recovered  back,  if  the  vendor  is  able  and  willing 
to  carry  out  the  contract  of  sale,  although  he  may  be  under  no 
obligation  to  perform.  But  this  doctrine  is  not  accepted  by 
some  of  the  courts,  which  hold  that  money  paid  under  a  void 
contract  may  be  recovered  back  whether  the  other  party  is 
Avilling  to  perform  or  not*  But  this  rule  is  regarded  as  harsh 
and  inequitable  by  the  weight  of  authority,  for  it  is  generally 
held  that  the  defaulting  party  cannot  recover  money  already 
paid  if  the  other  party  stands  ready  to  perform  on  his  part.^ 

510,  30  A,  115;  Hinckley  V.  Fowler,  .^83;    Gahvay    v.    Shields,    66    Mo. 

15  Me.  285.  31:3. 

1.  Kidder  v.  Hunt,  1  Pick.  4.  Nelson  v.  Imp.  Co.,  96  Ala. 
(Mass.)  328,  11  Am.  Dec.  183;  Gil-  515,  11  So.  695,  38  Am.  St.  Rep. 
let  V.  Maynard,  5  Johns.  (N.  Y.)  116;  Flinn  v.  Barber,  64  Ala.  193; 
85,  4  Am.  Dec.  329;  Gray  v.  Hill,  Koch  v.  Williams,  82  Wis.  186,  52 
Ry.  &  Wood.  420 ;  King  v.  Brown,  N.  W.  257 ;  King  v.  Welcome,  5 
2  Hill  (N.  Y.),  485;  Basford  v.  Gray  (Mass.),  41;  Shute  v.  Dorr, 
Pearson,  9  Allen  (Mass.),  389,  85  5  Wend.  (N.  Y.)  204;  Cowes  v. 
Am.  Dec.   764;    Williams  v.  Bemis,  Lawson,  16  Conn.  246. 

108    Mass.    91,    11    Am.   Rep.    318;  5.  Coughlin  v.   Knowles,   7   Met. 

Parker  v.  Taintor,  123  Mass.  185.  (Mass.)   57,  39  Am.  Dec.  759;  Col- 

2.  Riley  v.  Williams,  123  Mass.  lier  v.  Coates,  17  Barb.  (N.  Y.) 
506.  471;  Abbott  v.  Draper,  4  Denio  (N. 

3.  Kreger  v.  Leppel,  42  Minn.  Y. ),  51;  Johnson  v.  Krassin,  25 
6,  43  N.  W.  484;  Sims  v.  Hutchins,  Minn.  117;  Sennett  v.  Shehan,  27 
8  Sm.  &  M.  (Miss.)  331;  McKen-  Minn.  328,  7  N.  266;  Plumme.r  v. 
ney  v.  Harvie.  38  Minn.  18.  35  N.  Buckman,  55  Me.  105;  Shaw  v. 
W.  668 ;  Greton  v.  Smith,  33  N.  Y.  Shaw,  6  Vt.  69 ;  Hawley  v.  Moody, 
245 ;   Abbott  v.  Inskip,  29  Ohio  St.  24  Vt.  605. 

59;    Philbrook    v.    Belknap,    6    Vt. 

551 


§§    481,  482  OPERATION    OF    CONTRACTS.  Ch.    16 

§  481.  Failure  to  pay  in  a  manner  agreed  to. — If  services 
are  rendered,  to  be  paid  for  in  a  certain  way  which  is  not  en- 
forceable, upon  refusal  to  pay  in  the  manner  agreed  upon,  the 
one  performing  such  services  is  entitled  to  compensation  in 
money  for  what  such  services  are  reasonably  worth. ^  Thus,  if 
one  party  performs  services  in  payment  of  land,  which  con- 
tract is  contrary  to  the  statute  of  frauds,  and  the  land  is  not 
conveyed,  then  the  party  performing  the  services  can  recover 
a  reasonable  compensation  in  money  for  his  services.^ 

And  so  if  a  contract  is  void  under  the  statute  of  frauds,  the 
grantor  may  recover  of  the  grantee  the  value  of  the  property 
conveyed.^  The  action  in  such  case  does  not  rest  upon  the  con- 
tract except  as  there  arises  an  implied  contract  to  pay  the  value 
of  that  which  the  party  sought  to  be  charged  received  upon  the 
faith  of  the  repudiated  void  promise  from  the  grantor.* 

§  482.  Part  performance  —  Rescission  of  contract. — If  a 

party  enters  into  a  contract  and  then  the  other  party  aban- 
dons it  without  cause,  the  former  may  recover  for  the  work. 
Thus,  if  a  party  is  engaged  to  write  a  treatise  for  another  for 
publication,  and  then  the  latter  abandons  the  publication,  the 
former  may  rescind  and  recover  without  tendering  the  treatise.^ 
So  when  the  plaintiff  has  performed,  but  the  defendant  refuses 
to  pay,  the  plaintiff  has  an  election  either  to  stand  upon  the 
special  contract  and  recover  for  its  breach,  or  to  treat  it  as  re- 
scinded, and  recover  the  value  of  his  services  as  if  the  special 
contract  had  not  been  made.^    And  if  the  contract  is  voidable, 

1.  Shane  v.  Smith,  37  Kans.  55,  5.  Plance  v.  Colburn,  8  Bing. 
14  P.  477.  14. 

2.  Stone  v.  Stone,  43  Vt.  180.  6.  Williams  v.  Bemis,  108  Mass. 

3.  Robinson  v.  Raynor,  28  N.  Y.  91,  11  Am.  Rep.  318;  Brown  v. 
494;  Reed  v.  McConnell,  133  N.  Y.  Railroad  Co.,  36  Minn.  236,  31  N. 
425,  31  N.  E.  22;  Henning  V.  Miller,  W.  941;  Medbury  v.  Watrous,  7 
83  Hun  (N.  Y.),  403,  31  N.  Y.  S.  Hill  (N.  Y.),  110;  Ex  parte  Mac- 
878,  64  N.  Y.  St.  667.  lure,  L.  R.  5  Ch.  App.  737;   Siefel 

4.  Henning  v.  Miller,  83  Hun  (N.  v.  Ins.  Co.,  84  Pa.  St.  47;  Keys  v. 
Y.),  403,  31  N.  Y.  S.  878,  64  N.  Y.  Harwood,  2  C.  B.  905;  Drew  v. 
St.  667.  Claggett,  39  N.   H.   431;    Lawrence 

552 


Ch.    16  IMPLIED    CONTRACTS.  §§    482,  483 

the  party  may  rescind  and  recover  for  his  services.  Thus,  a 
special  contract  bv  a  minor  for  services  is  voidable,  and  if  he 
avoids  it,  he  may  recover  upon  a  quantum  meruit^  as  if  no  con- 
tract had  been  made.'  And  so  where  a  minor  goes  on  a  whaling 
voyage,  he  may  avoid  the  contract  by  desertion  during  the  voy- 
age, and  then  recover  on  a  quantum  meruit  for  his  services.^ 
But  if  the  contract  proves  beneficial  to  the  minor  and  is  exe- 
cuted on  both  sides,  it  is  not  voidable  by  the  minor.® 

In  such  cases  the  commencement  of  the  action  to  recover  the 
value  of  the  services,  is  a  sufficient  notice  of  his  election  to  sue 
on  the  implied  contract  though  he  has  an  action  on  the  special 
contract  for  its  breach.^" 

§  483.  Work  and  labor. — When  a  party  performs  work  for 
another  with  the  latter's  knowledge  and  assent,  and  it  is  ac- 
cepted, the  law  construes  the  acceptance  of  the  work  to  be  an 
implied  contract  therefor.^  If  there  is  no  special  contract, 
but  the  services  are  rendered  and  the  other  party  accepts  the 
benefit  of  the  sei*\'ices  rendered  by  the  other,  then  the  law  estab- 
lishes an  implied  contract  on  which  he  is  entitled  to  recover 
what  he  proves  the  services  reasonably  worth.^ 

A  part  o^wner  of  a  business  may  engage  for  a  salary  to  con- 
duct the  affairs  of  the  concern,  in  such  a  manner  that  the  law 
will  imply  a  contract  that  he  is  to  be  paid  for  his  services.' 
So  where  services  are  rendered  an  old  man  who  is  sick  and  in 

V.    Taylor,    5    Hill     (N.    Y.),    114;  1.  Hood  v.  League,  102  Ala.  228, 

Graves    v.    White,    87    N.    Y.    463;  14    So.    572;    McClary   v.    Railroad 

Oaffney  v.  Hayden,   110  Mass.   137,  Co.,  102  Mich.  312,  60  N.  W.  695; 

14  Am.  Rep.  580.  Mancy  v.  Hart,  11  Wash.  67,  39  P. 

7.  Moses  V.  Stone,  2  Pick.  268;  Kiser  v.  Halladay,  29  Oreg. 
(Mass.)  332;  Gaffney  .v.  Hayden,  338,  45  P.  759;  Howard  v.  Gobel, 
110  Mass.  137,  14  Am.  Rep.  580.  62  111.  App.  497:  Joseph  v.  :Machine 

8.  Vent     V.     Osgood,     19     Pick.  Co.,  99  Ala.  47,  10  So.  327. 
(Mass.)   572.  2.  Nichols   v.    Vinson,    9    Houst. 

9.  Stone  v.  Dennison,  13  Pick.  (Del.)  274;  Fish  v.  Stamping  Co., 
(Mass.  1,  23  Am.  Dec.  654.  58  111.  App.  663. 

10.  Lawrence  v.  Taylor,  5  Hill  3.  Xickerson  v.  Spindell  1 64 
(N.  Y.),   107,   114,   115;   Graves  v.       Mass.  25,  41  N.  E.  105. 

White,   87    N.   Y.    463;    Graham  v. 
Holloway,  44  111.   385. 

553 


§§    483-485  OPEKATION    OF    CONTKACTS.  Ch.    16 

need  of  special  care,  his  estate  is  liable  for  reasonable  com- 
pensation, though  there  was  no  contract  for  the  same.* 

But  not  every  case  of  services  implies  a  compensation.  Thus, 
in  cases  of  a  flood,  as  in  those  of  conflagration,  services  ren- 
dered voluntarily  to  preserve  another  man's  property  from  de- 
struction, are  presumed  to  be  gratuitous  and  give  no  cause  of 
,a;ctibn.^  So  where  a  person  lends  a  horse  to  another,  it  does 
not  of  itself  authorize  the  borrower  to  make  him  answerable 
for  its  keep  or  improvement.®  !Nor  will  a  suit  lie  against  a 
husband  by  a  solicitor  for  services  to  the  wife  in  defending  a 
divorce  suit.  The  only  remedy  is  in  equity  on  an  application 
in  the  divorce  proceedings  by  the  wife  for  alimony  and  coun- 
sel fees.'^ 

§  484.  Physician's  services. — If  a  physician  should  be  called, 
in  an  emergency,  to  prescribe  for  an  unconscious  person,  whose 
immediate  attention  was  necessary  to  save  the  patient's  life, 
and  who  expected  compensation,  the  law  would  imply  a  contract 
for  payment  by  the  patient.^  But  a  physician  who  is  called 
by  a  third  person  to  attend  to  an  injured  employe,  cannot 
recover  from  the  employer  on  an  implied  promise.^ 

And  a  master  who  requests  a  physician  to  perform  services 
for  his  servant  does  not  impliedly  promise  to  pay  for  them, 
since  he  is  under  no  legal  obligation  to  do  so.^ 

§  485.  Burial  of  the  dead. — ^The  dead  must  be  buried.  And 
in  case  those  to  whom  this  duty  belongs  are  absent  or  neglects 
to  perform  it,  any  other  person  may  perform  this  duty  and 
then  recover,  as  on  an  implied  contract,  his  reasonable  compen- 

4.  Dannenhauer  v.  Browne,  47  7.  Westcott  v.  Hinckley,  56  N.  J. 
La.  Ann.  341,  16  So.  827.  L.  343,  29  A.  154. 

5.  New  Orleans,  etc.  R.  R.  Co.  v.  1.  Bishop  on  Cont.  231;  Richard- 
Turcan,46La.  Ann.  155,  15  So.  187;  son  v.  Strong,  13  Ired.  (N.  Car.) 
Compare  Watson  v.  Le  Doux,  8  La.  106,  55  Am.  Dee.  430. 

Ann.  68,  28  Am.  Dec.  129.  2.  Malone  v.  Ice  Co.,  88  Wis.  542, 

6.  Cahill  V.  Hall,  161  Mass.  512,        60  N.  W.  999. 

37  N.  E.  573.  3.  Jesserich   v.   Walruff,   51   Mo. 


App.  270. 


554 


Ch.    16  IMPLIED    CONTRACTS.  §    485 

sation;^  and  it  makes  no  difference  whether  the  party  incurring 
this  expense  is  an  undertaker  or  a  mere  volunteer.^  But  only 
such,  necessaries  for  the  funeral  of  the  decedent  and  care  of 
his  estate  as  cannot  properly  be  postponed  until  an  adminis- 
trator shall  be  appointed,  are  chargeable  against  the  estate.* 

The  modern  English  doctrine  is  that  if  the  executor  or 
administrator  gives  orders  for  tlie  funeral,  or  ratifies  or  adopts 
the  acts  of  another  party  who  has  given  orders,  he  makes  him- 
self liable  personally  and  not  in  his  representative  capacity.* 

In  tlie  United  States,  it  is  held  by  the  courts  that  the  ex- 
ecutor or  administrator  may  be  charged  in  his  representative 
character,  and  judgment  be  rendered  de  bonis  testatoris}  But 
this  question  is  regiilated  by  statutory  provisions  in  most  of 
the  States. 

An  executor  who  pays  the  debts  and  funeral  expenses  of 
his  testator,  for  the  discharge  of  which  there  is  no  personal 
estate,  is  entitled  in  equity  to  be  reimbursed  therefor  out  of 
the  real  estate.® 

The  old  doctrine  seems  to  be  that,  upon  any  promise  made 
after  the  death  of  the  testator  or  intestate,  the  executor  or  ad- 
ministrator was  chargeable,  if  at  all,  as  of  his  own  goods,  and 
not  in  his  representative  capacity.' 

But  now,  in  some  cases,  an  executor  may  be  sued  in  his 
representative  capacity  on  a  promise  made  by  him  as  executor ; 
and  a  judgment  had  de  bonis  testatoris.  But  in  these  cases, 
that  which  constituted  the  consideration  of  the  promise  or  the 
cause  of  action  arose  in  the  lifetime  of  the  testator.^     Ajid  an 

1.  Jenkins  v.  Tucker,  1  H.  Bl.  5.  Hapgood  v.  Houghton,  10 
90;    Bradshaw  v.   Beard,   12   C.   B.,        Pick.    (Mass.)    154. 

N.  S.  344.  6.  Clayton   v.    Somers,   27   N.   J. 

2.  Ambrose  v.  Kerrison,  10  C.  B.  Eq.  230;  Green  v.  Salmon.  8  Ad.  & 
776.  El.  348. 

3.  Samuel  v.  Thomas,  51  Wis.  7.  Trewinian  v.  Howell,  Cro. 
549,  8  N.  3G1.  Sop,  also,  Foley  v.  Eliz.  91;  Hawkes  v.  Saunders, 
Bushway,  71  HI.  386.  Cowp.  289;  Jennings  v.  Newman,  4 

4.  Brice  v.  Wilson,  8  Ad.  &  El.  Term  R.  348;  Bridgen  v.  Parkes,  2 
349,  n. ;  Corner  v.  Shew,  3  Mees.  &  Bos.  &  Pul.  424. 

Wei.  350.  8.  Dowse   v.    Coxe,    3    Bing.    26; 

555 


§    485  OPEEATION    OF    CONTEACTS.  Ch.    16 

action  for  goods  sold  and  delivered  to  one  as  an  executor,  or 
for  work  done  for  one  as  executor,  charges  tlie  defendant  per- 
sonally, and  not  in  his  representative  character.® 


AETICLE  V. 

Waiving  of  Tokt. 

Section  486.  Waiving  the  Tort  and  Suing  on  the  Implied  Contract. 

487.  When  Waiver  May  Be  Made. 

488.  Doctrine  that  the  Property  Must  Be  Sold. 

489.  Doctrine  that   the    Property   Need   Not   Be   Converted  into 

Money. 

490.  Counter  Claim  or  Set-off. 

491.  Privity  of   Contract. 

492.  Implied   Assvmipsit   Lies    for    Trees    or    Stone   Severed   and 

Converted. 

493.  When  Wrongdoer  has  Adverse  Possession  of  Land. 

494.  Right  of  Agent  of  Injured  Party  to  Sue  in  Assumpsit. 

495.  Several  Tort  Feasors. 

496.  Duress. 

497.  Duress  of  Goods. 

498.  Imprisonment. 

499.  Threats  of  Imprisonment. 

500.  Compounding  Felony. 

501.  Voluntary  Payment  of  Money. 

502.  As  to  Third  Parties  with  Notice. 

503.  Receiving  Benefits  of  a  Fraud — Agency. 

504.  Money  Received  in  Payment  of  Debts. 

505.  Chattels  Wrongfully  Obtained. 

§  486.  Waiving  the  tort  and  suing  on  the  implied  contract. 

— A  mere  naked   trespass,   although   creating  a  liability  for 
damages,  cannot  be  the  basis  of  an  action  as  an  implied  as- 

Powell   v.   Graham,   7   Taunt.   581;  Johns.   (N.  Y.)   349.     For  the  right 

Ashley   v.   Ashley,    7    Barn.    &   Cr.  of   possession   of   a  dead   body,   see 

444.  McQueen  v.  Fox,  2  Q.  B.  246;  Wil- 

9.  Corner  v.  Shew,  3  Mees.  &  WeL  liams  v.  Williams,  20  Ch.  D.  659; 

350.     See,  also,  Foster  v.  Fuller,  6  Pierce  v.  Cenultry,   10  R.  I.  227,  4 

Mass.  58,  4  Am.  Dec.  87 ;  Sumner  v.  Am.  Rep.  667 ;  Hackett  v.  Hackett, 

Williams,  8  Mass.  162,  5  Am.  Dec.  18  R.  I.  155,  26  A.  42,  19  L.  R.  A. 

83;  Davis  v.  French,  20  Me.  21,  37  558,  49  Am.  St.  Rep.  762;  Larson  v. 

Am.    Dec.    36;    Myer    v.    Cole,    12  Chase,  47  Minn.  307,  50  N.  W.  230, 

556 


Cll.    16  IMPLIED    CONTRACTS.  §    486 

sumpsit/  The  law  will  not  under  all  circumstances  treat  that 
as  a  contract  which,  in  fact,  is  a  tort.^  An  action  on  implied 
assumpsit  is  not  to  recover  damages  for  the  tort,  but  to  recover 
the  value  of  that  which  the  wrongdoer  has  appropriated  to  his 
own  use,  the  law  implying  a  promise  to  pay  its  reasonable 
value.^ 

Where  no  benefits  are  received  by  the  wrongdoer,  the  liabil- 
ity is  only  for  damages  for  the  tort*  Where  the  plaintiff  can 
waive  the  tort  and  sue  in  assumpsit  he  may  bring  assumpsit 
in  the  common  counts.  But  the  rule  must  be  taken  with  this 
qualification :  That  the  defendant  is  not  thereby  to  be  de- 
priced  of  any  benefit,  which  he  could  have  derived  under  the 
appropriate  form  of  action  in  tort.^ 

Actions  ex  delicto  and  ex  contractu  in  these  cases  are  con- 
current; but  the  proof  must  be  the  same  in  each.^  The  dec- 
laration may  contain  a  count  for  money  had  and  received,  and 
other  counts  alleging  facts  of  the  fraudulent  transaction  which 
was  the  foundation  of  the  suit.^  The  declaration  may  contain 
special  counts  setting  out  the  instrument  as  inducement,  and 
it  may  allege  the  utter  falsity  of  its  recitations  and  the  fraud 
of  the  whole  transaction,  and  contain  also  the  common  counts.^ 

14  L.  R.  A.     85  and  note,  28  Am.  Fuller  v.  Duren,  36  Ala.  73,  76  Am. 

St.    Rep.    370;    Foley   v.    Phelps,    1  Dec.  318. 

App.    Div.    551,    37    N.   Y.    S.    471;  3.  Downs  v.  Finnegan,  58  Minn. 

Renihan   v.    Wright    125    Ind.    536,  112,  59  N.  W.  981,  49  Am.  St.  Rep. 

25  N.  E.  822,  9  L.  R.  A.  514,  21  Am.  488. 

St.  Rep.  249;  Younge  v.  College,  81  4.  Braithwaite    v.    Aiken.    3    N. 

Md.  358,  32  A.  177,  31  L.  R.  A.  540  Dak.  305,  56  N.  W.  133. 

and    note;    Driscoll    v.    Nichols,    5  5.  2  Greenl.  on  Ev.  120;  Doherty 

Gray      (Mass.),      488;      Weed      v.  v.  Shields,  86  Hun,  303,  33  N.  Y.  S. 

Walker,  130  Mass.  422,  39  Am.  Rep.  497,  67  N.  Y.  St.  211. 

465.  6.  Spoor   v.   Newell,   3   Hill    (N. 

1.  Downs  V.  Finnegan,  58  Minn.  Y.),  308;  Doherty  v.  Shields,  86 
112,  59  N.  W.  981,  49  Am.  St.  Rep.  Hun,  303,  33  N.  Y.  S.  497,  67  N.  Y. 
488.  St.  211. 

2.  Jones  v.  Hoard,  5  Pick.  7.  Steiner  v.  Clisby,  103  Ala.  181, 
(Mass.)    285;    Balch  v.   Patten,   45  15  So.  612. 

Me.  41,  71  Am.  Rep.  526;  Raymond  8.  Burton    v.    Driggs,    20    Wall. 

V.   Lowe,   87   Me.    329,   32   A.    964;         (U.  S.)   125. 


557 


§§  487,488 


OPEEATION    OF    CONTEACTS. 


Ch.  16 


§  487.  When  waiver  may  be  made. — ^Where  one  person  has 
wrongfully  taken  the  money  of  another,  or  taken  his  property 
and  converted  it  into  money,  the  injured  party  has  a  right  of 
action  ex  delicto  for  the  injury,  such  as  an  action  of  trespass 
or  trover  or  an  action  for  deceit.  But  in  many  cases  he  may 
waive  the  tort  and  sue  on  the  implied  contract  and  recover  the 
value  of  the  money  or  property.'^ 

After  the  election  has  been  made  and  the  plaintiff  sues  on 
the  implied  contract,  he  cannot  then  resort  to  an  action  on  the 
tort.^  He  cannot  waive  in  part  only,  but  must  elect  as  to  the 
whole  transaction.^ 


§  488.  Doctrine  that  the  property  must  be  sold. — It  is  held 

by  one  class  of  cases  that  the  injured  party  may  waive  the 
tort  and  sue  in  assumpsit  only  when  the  wrongdoer  has  sold 
the  property,  and  received  money  therefor  or  money's  worth.* 


1.  Braithwaite  v.  Aiken,  3  N. 
Dak.  365,  56  N.  W.  133;  Norden  v. 
Jones,  33  Wis.  600,  14  Am.  Rep. 
782;  Barker  v.  Cory,  15  Ohio,  9; 
Terry  v.  Hunger,  121  N.  Y.  161,  24 
N.  E.  272,  8  L.  R.  A.  216  and  note, 
18  Am.  St.  Rep.  803;  Fratt  v. 
Clark,  12  Cal.  89;  Jones  v.  Hoar, 
5  Pick.  (Mass.)  290;  Mahoon  v. 
Greenfield,  52  Miss.  434;  Cooper  v. 
Cooper,  147  Mass.  370,  17  N.  E.  892, 
9  Am.  St.  Rep.  121;  Neate  v.  Hard- 
ing, 6  Exch.  349;  Carey  v.  Free- 
holders, 47  N.  J.  L.  181,  1  A.  473; 
Dashaway  Asso.  v.  Rogers,  79  Cal. 
211,  21  P.  742;  Smith  v.  Baker,  L. 
R.  8  C.  P.  350;  Gilmore  v.  Wilbur, 
12  Pick.  (Mass.)  120,  22  Am.  Dec. 
410. 

2.  Thompson  v.  Howard,  31 
Mich.  309;  Hoffman  v.  Bughlett,  11 
Lea  (Tenn.),  549;  Brewer  v.  Spar- 
row, 7  Barn.  &  Cr.  310;  Cooper  v. 
Cooper,  147  Mass.  370,  17  N.  E. 
892,  9  Am.  St.  Rep.  721. 


3.  Lythgoe  v.  Vernon,  5  Hurl.  & 
N.  180. 

4.  Jones  v.  Soar,  5  Pick.  (Mass.) 
290;  Moses  v.  Arnold,  43  Iowa,  187, 
22  Am.  Rep.  239;  Tuttle  v.  Camp- 
bell, 74  Mich.  652,  42  N.  W.  384, 
16    Am.    St.    Rep.    652    and    note; 

Mahoon  v.  Greenfield,  52  Miss.  434; 
Willet  V.  Willet,  3  Watts  (Pa.), 
277;  Stearns  v.  Dillingham,  22  Vt. 
624,  54  Am.  Dec.  88;  Watson  v. 
Stever,  25  Mich.  387;  Balch  v. 
Pattee,  45  Me.  41,  71  Am.  Dec.  526; 
Kidney  v.  Persons,  41  Vt.  386,  98 
Am.  Dec.  595;  Gilmore  v.  Wilbur, 
12  Pick.  (Mass.)  120,  22  Am.  Dec. 
410;  Jones  v.  Baird,  7  Jones  (N. 
Car.)  152;  Steiner  v.  Clisby,  103 
Ala.  181,  15  So.  612.  See,  also,  Mc- 
Connel  v.  Delaware,  18  111.  229; 
Johnson  v.  Ins.  Co.,  39  Mich.  33; 
Magoffin  v.  Muldrow,  12  Mo.  512; 
Walker  v.  Coleman,  81  111.  390,  25 
Am.  Rep.  285;  Bliss  v.  Thompson, 
4  Mass.  488;  Howe  v.  Clancey,  53 
Me.  130. 


558 


Cll.    16  IMPLIED    CONTRACTS.  §§    488,  489 

All  the  authorities  agree  that  one  who  takes  and  sells  per- 
sonal property  belonging  to  another,  without  the  consent  of 
the  owner,  is  liable  for  its  value  in  an  action  upon  an  implied 
promise  to  pay  for  the  property.^  But  it  is  held  that  where  the 
wrongdoer  has  the  property  only  temporarily  with  no  intention 
to  keep  it  permanently,  he  is  only  liable  for  the  tort  in  damages.^ 

§  489.  Doctrine  that  the  property  need  not  be  converted 
into  money. — The  authorities  differ  as  to  whether  such  an  action 
will  lie  where  the  wrongdoer  does  not  sell  the  property,  but 
retains  it  for  his  own  use.  However,  the  weight  of  authority 
holds  that  the  action  will  lie  Avhere  the  wrongdoer  enriches 
himself  or  makes  a  profit  from  the  property,  either  by  selling 
it  or  by  retaining  it  and  using  it  himself,  with  the  intention 
to  convert  it  permanently.^ 

The  right  of  the  injured  party  to  sue  on  the  implied  prom- 
ise, where  the  wrongdoer  has  been  benefited  by  the  conversion, 
whether  the  property  is  sold  or  not,  cannot  be  denied  only  by 
creating  a  fiction.  The  fact  that  the  property  has  not  been 
sold  by  the  wrongdoer,  when  he  intends  to  keep  it  permanently, 
is  important.  The  rule  should  be,  that  the  owner  of  property 
converted  may  waive  the  tort  and  sue  in  assumpsit  for  the  bene- 
fits received  whenever  the  tort-feasor  receives  benefits  of  any 
kind  from  the  wrong  committed,  whether  by  sale  or  by  reten- 
tion of  the  converted  property,  or  in  any  other  manner;^    of 

5.  Reynolds  v.  Padgett,  94  Ga.  Davis,  3  N.  H.  384;  Stockett  v. 
347,  19  S.  E.  906;  Steiner  v.  Clisby,  Watkins,  2  Gill.  &  J.  (Md.)  326, 
103  Ala.  181,  15  So.  612.    .  20  Am.  Dec.  438;   Barker  v.  Cory, 

6.  Reynolds  v.  Padgett,  94  Ga.  15  Ohio,  9;  Berly  v.  Taylor,  5  Hill 
347,  19  S.  E.  906.  (N.   Y.),   583;    Doherty  v.   Shields, 

1.  Braithwaite    v.    Aiken,    3    N.  86  Hun    (N.  Y.),  303,  33  N.  Y.  S. 

Dak.  365,  56  N.  W.  133 ;  Norden  v.  497 ;   Downs  v.  Finnegan,  58  Minn. 

Jones,   33   Wis.    600,    14   Am.   Rep.  112,  59  N.  W.  981,  49  Am.  St.  Rep. 

782;    Terry  v.   Hunger,    121   N.  Y.  488. 

161,  24  N.  E.  272,  8  L.  R.  A.  216  2.  Braithwaite    v.    Aiken,    3    N. 

and    note,    18    Am.    St.    Rep.    803;  Dak.  365,  56  N.  W.  133;  Pomeroy's 

Fratt  V.  Clark,  12  Cal.  89;   Hill  v.  Code  Rem.  567,  569. 


559 


§§    489-491  OPERATION    OF    CONTRACTS.  Ch.    1Q> 

course,  if  the  wrongdoer  only  has  the  property  temporarily 
and  then  offers  to  return  it,  there  is  only  a  tort.^ 

§  490.  Counter-claim  or  set-off. — By  waiving  the  tort  and 
suing  in  assumpsit,  a  counter-claim  may  be  made.  One  of  the 
sole  objects  in  waiving  the  tort  is  often  for  the  purpose  of  en- 
abling the  injured  party  to  set  up  his  claim  as  an  offset,  where, 
without  such  waiver,  he  could  not,  because  of  its  tort  nature, 
use  it  as  a  counter-claim  or  set-off.* 

If  the  action  of  assumpsit  can  only  be  brought  in  case  of 
money  retained  by  the  wrongdoer,  or  where  he  has  sold  the 
property  and  received  the  money  therefor,  then  the  injured  may 
be  deprived  of  his  right  of  counter-claim  or  set-off,  if  the  prop- 
erty has  not  been  sold.^ 

§  491.  Privity  o£  contract.— The  action  for  money  had  and 
received  is  a  liberal  and  equitable  action,  and  on  the  principle 
of  natural  justice  and  equity,  will  be  supported,  where  the  de- 
fendant has  received  money,  which  in  good  conscience  he  ought 
not  to  retain,  and  which,  ex  equo  et  bono,  belongs  to  the  plain- 
tiff. The  law  implies  a  promise  that  he  will  pay  it;  and  the 
only  privity  between  the  parties  that  need  be  shown  in  such  an 
action  arises  from  this  promise  implied  by  law,  that  the  de- 
fendant, having  in  his  hands  money  which  belongs  to  the  plain- 
tiff, will  pay  it  over  to  him.^ 

3.  Eeynolds    v.    Padgett,    94    Ga.  58  Minn.  112,  59  N.  W.  981,  49  Am. 
347,  19  S.  E.  906.  St.  Rep.  488. 

4.  Norden  v.  Jones,  33  Wis.  600,  5.  Braithwaite    v.    Aiken,     3     N, 
14  Am.  Rep.  782;   Coit  v.  Stewart,  Dak.  365,  56  N.  W.  133. 

50  N.  Y.  17;  Brady  v.  Brennan,  25  1.  Boyett  v.  Potter,  80  Ala.  479, 

Minn.  210;    Starr  Cash   Car  Co.  v.  2  So.  534;  Mason  v.  Waite,  17  Mass. 

Reinhardt,    20    N.    Y.     S.    872,    2  562 ;  Steiner  v.  Clisby,  103  Ala.  181, 

Misc.  116,  49  N.  Y.  St.  228;  Wood  15  So.  612;   Houston  v.  Frazier,  8 

V.  Mayor,  73  N.  Y.  556 ;  Barnes  v.  Ala.  84 ;  Burton  v.  Driggs,  20  Wall. 

McMullins,  78  Mo.   260;    Becker  v.  (U.  S.)    125.     See,  also,  Wilkinson 

Northway,  44  Minn.  61,  46  N.  W.  v.    Wilkinson,    62    Mo.    App.    249; 

210,   20   Am.   St.   Rep.   543;    Evans  Williams  v.  Ladew,  171  Pa.  St.  369, 

V.  Miller,  58  Miss.  120,  38  Am.  Rep.  33  A.  329 ;  Emery  v.  Emery,  87  Me. 

313  and  note;   Downs  v.  Finnegan,  281,  32  A.  900. 

560 


Ch.    16  IMPLIED    CONTKACTS.  §    ^92 

§  492.  Implied  assumpsit  lies  for  trees  or  stone  severed  and 
converted. — Under  the  modem  decisions  a  tort  can  be  waived 
and  assumpsit  brought  on  the  implied  promise,  where  there 
has  been  a  wrongful  conversion  of  property  of  one  person  to 
the  use  of  another,  whether  sold  or  not  bv  the  wrongdoer ;  and 
this  applies  to  cases  where  trees  have  been  severed  by  a  tres- 
passer from  land  in  possession  of  the  owner,  and  to  quarried 
stone  thereon,  and  the  wrongdoer  has  afterwards  taken  the 
trees  or  stone  away,  converting  the  same  to  his  own  use,  so 
that  trover  or  replevin  would  lie.^ 

And  it  has  been  held  in  an  action  of  tort  that  the  owner  of 
trees  cut  from  his  land  by  a  wilful  trespass,  and  by  him  man- 
ufactured into  railroad  ties,  and  sold  to  an  innocent  purchaser, 
may  recover  from  the  latter  their  value  as  ties,  without  any 
allowance  for  the  increased  value  put  upon  the  timber  by  the 
trespasser.^ 

The  weight  of  authority  is  that  where  an  action  is  brought 
for  damages  for  logs  cut  and  removed  in  the  honest  belief  on  the 
part  of  the  purchaser  that  he  had  title  to  them,  the  measure  of 
damages  is  the  value  in  the  woods  from  which  they  were  taken,, 
with  the  amount  of  injury  incident  to  removal,  and  not  at  the 
mill  where  they  were  carried  to  be  sawed. ^ 

1.  Downs  V.  Finnegan,  58  Minn.  85,  20  S.  E.  188,  25  L.  E.  A.  813,  44 
112,  59  N.  W.  981,  49  Am.  St.  Rep.  Am.  St.  Rep.  439  and  note;  Rail- 
488.  road  Co.  v.  Hutchins,  32  Ohio  St. 

2.  Powers  v.  Tilley,  87  Me.  34,  571,  30  Am.  Rep.  629;  Tilden  v. 
32  A.  714,  47  Am.  St.  Rep.  304.  See,  Johnson,  52  Vt.  628,  36  Am.  Rep. 
also,  Strubbles  v.  Railroad  Co.,  78  709  and  note;  Herdie  v.  Young,  55 
Ky.  481;  Heard  v.  James,  49  Miss.  Pa.  St.  176,  93  Am.  Rep.  739;  Hill 
236;  Gaskins  v.  Davis,  115  N.  Car.  v.  Canfield,  56  Pa.  St.  454;  Moody 
85,  20  S.  E.  188,  25  L.  R.  A.  813,  44  v.  Longfellow,  26  Me.  306;  Galler  v. 
Am.  St.  Rep.  439  and  note;  Frank-  Fett,  30  Cal.  482;  Foot  v.  Merrill, 
lin  Coal  Co.  v.  McMillan,  49  Md.  54  N.  H.  490,  20  Am.  Rep.  157. 
549,  33  Am.  Rep.  280  and  note;  See,  also.  Waters  v.  Stevenson,  13 
Compare  Omaha,  etc.  Co.  v.  Tabor,  Nev.  157;  Ross  v.  Scott,  15  I^ea 
13  Colo.  41,  21  P.  925,  5  L.  R.  A.  (Tenn.),  479;  Forsyth  v.  Wells,  41 
236,  16  Am.  St.  Rep.  185;  Beede  v.  Pa.  St.  291,  80  Am.  Dec.  617;  Coal 
Lumprey,  64  N.  H.  510,  15  A.  133,  Creek  M.  Co.  v,  Moses,  15  Lea 
10  Am.  St.  Rep.  426.  (Tenn.),  300,  54  Am.  Rep.  415  and 

3.  Gaskin  v.  Davis,  115  N.  Car.  note;    Burton  Coal  Co.  v.  Cox,  39 

561 


§§    493,494  OPERATION    OF    CONTRACTS.  Ch.    16 

§  493.When  wrongdoer  has  adverse  possession  of  land. — 

If  the  wrongdoer  severs  trees  or  takes  away  quarried  stone  or 
other  articles  severed  from  the  realty,  and  converts  them,  but 
has  adverse  possession  of  the  land  injured,  assumpsit  for  their 
value  by  the  real  owner  will  not  lie,  because  title  to  land  can- 
not be  tried  ex  directo  in  transitory  actions.^  An  action  in 
assumpsit,  in  such  cases,  cannot  be  maintained  where  the  title 
of  the  land  is  involved  in  the  suit.^  So  that,  in  order  to  main- 
tain assumpsit  for  the  value  of  the  stone  excavated  from  the 
soil  or  other  property  and  converted  by  the  wrongdoer,  the 
owner  must  have  actual  or  constructive  possession  of  the  land, 
in  addition  to  his  paper  title.^ 

§  494.  Right  of  agent  of  injured  party  to  sue  in  assumpsit. 

— An  agent  cannot  waive  the  tort  and  sue  in  assumpsit,  mak- 
ing the  case  his  own.  Because  the  principle  of  recovery  is  that 
the  wrongdoer  received  the  money  or  property,  where,  ex  equo 
et  bono,  it  belonged  to  the  injured  party  and  not  to  his  agent. 
In  such  case  the  burden  is  on  the  injured  party  to  show  that 
he  is  legally  entitled  to  the  money  or  value  of  the  converted 
property,  and  it  is  not  enough  to  show  that  the  defendant  has 
no  right  to  it.  If  neitlier  party  is  entitled  to  the  money,  neither 
can  recover  from  the  other.* 

The  one  who  has  been  damaged  by  acting  on  a  false  and 
fraudulent  representation  made  to  him  as  an  agent  of  another, 
but  not  intended  to  be  acted  upon  by  him,  has  no  action  for 

Md.    1,    17    Am.    Rep.    525;    Blaen  112,  59  N.  W.  981,  49  Am.  St.  Rep. 

Avon  Coal  Co.  v.  McCulloh,  59  Me.  488. 

403,    43    Am.    Rep.    560    and   note;  2.    Powell    v.     Smith,     2    Watts 

Franklin  Coal  Co.  v.  McMillan,  49  (Pa.),    126;     Baker    v.    Howell,    6 

Md.  549,  33  Am.  Rep.  280  and  note;  Serg.  &  R.   (Pa.)   481. 

Austin  V.  Coal  Co.,  72  Mo.  535,  37  3.  Downs  v.  Finnegan,  58  Minn. 

Am.  Rep.  446;   Compare  Isle  Royal  112,  59  N.  W.  981,  49  Am.  St.  Rep. 

Mine  Co.  v.  Herten,  37  Mich.   332,  488. 

26  Am.  Rep.  514  and  note;   Hazel-  4.  Hungerford  v.  Moore,  65  Ala. 

ton   V.    Week,    49    Wis.    661,    6    K  232;  Mobile,  etc.  R.  R.  Co.  v.  Fel- 

309,  35  Am.  Rep.  796.  rath,      67      Ala.      189.      See,      also, 

1.  Washburn  v.  Cutler,  17  Minn.  Steiner  v.  Clisby,   103  Ala.  181,   15 

361 ;   Downs  v.  Finnegan,  58  Minn.  So.  612. 

562 


Ch.  16  IMPLIED  CONTRACTS.         §§  494,  495 

deceit  against  the  party  making  the  representation.  The  false 
and  fraudulent  representations  must  have  been  intended  to  be 
acted  on,  in  a  manner  affecting  himself,  by  the  party  who  seeks 
redress  for  the  consequential  injuries.^ 

If  the  false  representation  is  made  to  A  to  induce  him  to  part 
with  his  money,  and  he  does  so,  A  must  sue;  but,  if  made  to 
him  to  induce  B  to  part  with  his,  and  B  is  induced  thereby  to 
do  so,  he,  and  not  A,  is  the  party  injured,  who  may  maintain 
the  action.  In  eyerj  case  the  money  to  be  recovered  must  be 
the  money  of  the  plaintiff  or  the  injured  party,^  and  not  his 
agent. 

§  495.  Several  tort  feasors. — In  order  to  maintain  an  action 
in  assumpsit,  it  is  necessary  to  show  that  tlie  defendant  has 
received  money  belonging  to  the  plaintiff.  But  where  several 
persons  are  parties  to  the  injury  of  another,  the  action  is  main- 
tainable against  all,  and  it  is  not  necessary  to  show  that  each 
of  the  defendants  received  a  share  of  the  proceeds.^  And  this 
result  will  not  be  varied  by  the  fact  that  the  common  agent 
failed  to  account  with  his  associates  and  absconded  witli  the 
proceeds.^ 

And  the  commencement  of  an  action  by  the  injured  party 
against  one  of  a  series  of  tort-feasors  upon  an  implied  contract 
arising  from  a  conversion  of  personalty  or  withholding  and  ap- 
propriating money,  will  not  be  a  waiver  of  his  rights  against 
the  otlier  tort-feasors.^ 

But  a  wife  who  merely  aids  her  husband  in  a  forgery,  or  a 
mechanic  who  is  simply  employed  to  execute  some  portion  of 
the  work  and  is  paid  for  his  services,  having  no  concern  or 
interest  in  the  fruits  of  the  crime,  is  not  liable  in  an  action 
ex  contractu  for  money  advanced  upon  the  forged  instrument. 

5.  Wells  V.  Cook,  16  Ohio  St.  67,       77  N.  Y.  400,  33  Am.  Rep.  632  and 
88  Am.  Dec.  436  and  note.  note. 

6.  2  Greenl.  on  Ev.  120.  3.  Huffman  v.  Houglilett,  11  Lea 

1.  National  Trust  Co.  v.  Gleason,        (Tenn.),  549. 

77  N.  Y.  400,  33  Am.  Rep.  632  and  4.  National  Trust  Co.  v.  Gleason, 

note.  77  N.  Y.  400,  33  Am.  Rep.  632  and 

2.  National  Trust  Co.  v.  Gleason,       note. 

563 


§§    496,  497  OPERATION    OF    CONTRACTS.  Ch,    16 

§  496.  Duress. — Money  obtained  under  duress  may  be  re- 
covered under  an  implied  contract  to  repay.  Tbus,  where  a 
party  is  not  liable  for  taxes,  who  is  called  upon  peremptorily 
to  pay  taxes  by  the  collector  and  he  can  save  himself  and  his 
property  in  no  other  way  than  by  paying  the  illegal  demand, 
he  may  give  notice  he  pays  the  taxes  under  duress  and  not 
voluntarily,  and  then  show  that  he  was  not  liable  and  recover 
back  the  money  thus  paid.^  Where  there  exists  coercion,  threats, 
compulsion  and  undue  influence,  there  is  no  volition.  There 
is  no  intention  or  purpose  but  to  yield  to  moral  pressure  for 
relief  from  it.  No  title  is  made  through  a  possession  thus  ac^ 
quired  and  the  money  may  be  recovered.® 

§  497.  Duress  of  goods, — ^Where  a  party  fraudulently  and 
wrongfully  knows  that  he  has  no  just  claim  against  another  ar- 
rests him  or  seizes  his  goods  for  the  purpose  of  extorting  money 
from  him,  the  payment  of  money  by  the  latter  to  the  former, 
in  order  to  release  himself  or  his  goods  from  such  fraudulent 
and  wrongful  detention,  is  not  voluntary,  but  by  compulsion; 
and  the  money  so  paid  may  be  recovered  back,  Avithout  proof 
of  such  termination  of  the  former  suit  as  would  be  necessary 
to  maintain  an  action  for  malicious  prosecution.^ 

And,  so,  where  a  carrier  has  exacted  money  by  duress  it  may 
be  recovered  back.^ 

5.  Amesbury,  etc.  Manuf.  Co.  v.  v.  Peden,  3  Watts  (Pa.),  327;  Cad- 
Amesbury,  17  Mass.  461;  Preston  aval  v.  Collins,  4  Ad.  &  El.  858,  6 
V.  Boston,  12  Pick.    (Mass.)    7.  Nev.  &  Man.  324;  Gates  v.  Hudson, 

6.  Barry  v.  Assur.  Co.,  59  N.  Y.  6  Exch.  346 ;  Parker  v.  Railway  Co., 
587;  Thornett  V.  Haines,  15  Mees.  &  6  Exch.  702;  Chandler  v.  Sanger, 
Wei.  367;  Foster  v.  Bartlett,  62  114  Mass.  364,  19  Am.  Rep.  367; 
N.  H.  617;   Street  v.  Blay,  2  Barn.  Cobb  v.   Charter,   32  Conn.   358,  87 

6  Adol.  456;   Gompertz  v.  Denton,       Am.  Dee.  178;  Robertson  v.  Frank, 
1  Comp.  &  M.  207.  132  U.  S.  17,  10  S.  Ct.  5;  Briggs  v. 

1.  Watkins  v.  Baird,  6  Mass.  506,  Boyd,  56  N.  Y.  289. 

4  Am.  Dec.  170;  Benson  v.  Monroe,  2.  McGregor  v.  Railroad  Co.,  35 

7  Cush.    (Mass.)    125,  54  Am.  Dec.  N.  J.  L.  89;   Baldwin  v.  Steamship 
716;     Carew     v.     Rutherford,     106  Co.,  74  N.  Y.  125,  30  Am.  Rep.  277 ; 
Mass.  1,  8  Am.  Rep.  287;  Richard-  Peters  v.  Railroad  Co.,  42  Ohio  St. 
son  V.  Duncan,  3  N.  H.  508;   Sart-  275,  51  Am.  Rep.  814  and  note, 
well  V.  Korton,  28  Vt.  370;  Colwell 

564 


Cll.    16  IMPLIED   CONTRACTS.  §§    498, 499 

§  498.  Imprisonment. — Although  an  arrest  may  be  for  a 
just  cause  and  under  a  valid  process,  yet  if  it  be  for  an  illegal 
purpose,  and  the  person  arrested  pays  the  money  for  his  re- 
lease, he  may  be  considered  as  having  paid  it  by  duress  of  im- 
prisonment and  may  recover  it  back,^ 

Where  there  is  an  arrest  for  an  improper  purpose  without 
just  cause,  or  an  arrest  for  just  cause  but  without  authority, 
or  for  just  cause  but  for  an  unlawful  purpose,  even  though 
under  process,  it  is  duress  of  imprisonment ;  and  if  the  person 
thus  arrested  executed  a  contract  or  pays  money  for  his  re- 
lease, he  may  avoid  the  contract  or  recover  the  money  paid  in 
a  suit  of  assumpsit.* 

But  if  such  money  was  paid  by  the  injured  party  voluntarily 
and  after  the  duress  and  the  influence  thereof  had  ceased,  it 
cannot  be  recovered  back.^ 

Where  money  has  been  wrongfully  obtained  by  means  of  a 
voidable  contract,  for  which  there  was  received  no  valuable 
consideration,  a  demand  before  suit  is  not  necessary,® 

§  499.  Threats  of  imprisonment. — ^It  is  held  by  some  of  the 
courts  that  mere  threats  of  criminal  prosecution,  where  neither 
warrant  has  issued  or  proceedings  commenced,  do  not  constitute 
duress  ;^  and  others  hold  that  a  threat  of  arrest  for  which  there 

3.  Eichardson  v.  Duncan,  3  N.  H.  506,  4  Am.  Dec.  170;  Severance  v. 
508;  Severance  v.  Kimball,  8  N.  H.  Kimball,  8  N.  H.  386;  Richardson 
386;  Hackett  v.  King,  6  Allen  v.  Duncan,  3  N.  H.  508;  Heckman 
(Mass.),  58;  De  Mesnil  v.  Dakin,  v.  Swartz,  64  Wis.  48,  24  N.  W. 
L.    R.    3    Q.    B.    18;    Heckman    v.  473. 

Swartz,  64  Wis.  48,  24  N.  W.  478;  5.  Heckman   v.    Swartz,   64   Wis. 

Bush  V.  Brown,  49  Ind.  573,  19  Am.  48,  24  N.  W.  473. 

Rep.   695;    Walker   v.   Larkin,    127  6.  Baldwin  v.  Hutchinson,  8  Ind. 

Ind.    100,  26   N.   E.   684;    Tilley  v.  App.  454,  35  N.  E.  511;  Thompson 

Damon,    11    Cush.     (Mass.)     247;  v.  Peck,  115  Ind.  512,  18  N.  E.  16, 

Richards    v.    Vanderpool,     1     Daly  1  L.  R.  A.  201. 

(N.  Y.),  71;    Foshay  v.   Ferguson,  1.  Buchanan    v.    Sahlein,    9    Mo. 

5  Hill   (N.  Y.),  154;  Brooks  v.  Ber-  App.  552;  Higgins  v.  Bro\vn,  78  Me. 

ryhill,  20  Ind.  97;   Fisher  v.  Shat-  473,  5  A.  269;   Council  v.  Burnett, 

tuck,  17  Pick.  (Mass.)  252.  34  Ala.  400. 

4.  Watkins    v.    Baird,    6    Mass. 

565 


§§    499,  500'  OPERATION    OF    CONTRACTS.  Ch.    16 

is  no  ground  does  not  constitute  duress,  as  the  party  could  not 
be  put  in  fear  thereby.^  These  cases  have  no  regard  to  the  con- 
dition of  the  mind  of  the  person  acted  upon  by  the  threat,  nor  do 
they  take  into  consideration  the  age,  disposition,  or  intellect  of 
the  person  threatened  ;  and  leave  the  old,  the  ignorant,  the  weak, 
and  the  timid  at  the  mercy  of  the  villain  and  shyster  who  ope- 
rate upon  their  fears  to  extort  money  from  them.  So  the  threats 
to  imprison  an  aged  man  may  be  duress,  and  the  money  may  be 
recovered  back.^ 

And  a  threat  to  procure  the  arrest  and  imprisonment  of 
one's  son  under  a  false  and  criminal  charge,  and  reasonable 
ground  to  believe  that  such  threat  will  be  executed,  constitutes 
duress,  and  money  paid  to  prevent  such  action  may  be  recovered 
back.*  And  so  where  a  wife  is  induced,  by  a  threat  of  her  hus- 
band's arrest,  to  pay  a  debt  due  from  him  to  the  creditor,  she 
may  recover  back  the  money  paid  as  obtained  by  undue  in- 
fluence, and  it  is  immaterial  whether  or  not  there  was  a  law- 
ful ground  for  the  arrest.^ 

§  500.  Compounding  felony.  —  Where  a  note  is  given  or 
money  paid  to  compound  a  felony,  the  contract  is  illegal,  and 
the  money  cannot  be  recovered  nor  the  note  collected.^  The  law 
is  well  settled  that  contracts  made  in  violation  of  law  cannot  be 
enforced;    where,  however,  such  contracts  have  been  executed 

2.  Knapp  v.  Hyde,  60  Barb.  (N.  5.  Adams  v.  Bank,  116  N.  Y. 
Y.)  80;  Preston  v.  Boston,  12  Pick.  G06,  23  N.  E,  7,  6  L.  E,.  A.  491,  15 
(Mass.)    12.  Am.  St.  Rep.  447.     See,  also,  Eadie 

3.  Cribbs  v.  Sowle,  87  Mich.  340,  v.  Slimmon,  26  N.  Y.  9,  82  Am. 
49  N.  W.  587,  24  Am.  St.  Rep.  166.  Dec.  395  and  note;  Peyser  v.  Mayor, 

4.  Schultz  V.  Culbertson,  46  Wis.  70  N.  Y.  501,  26  Am.  Rep.  624; 
313,  1  N.  W.  19;  Meech  v.  Lee,  82  Fisher  v.  Bishop,  36  Hun  (N.  Y.), 
Mich.  274,  46  N.  W.  383;  Eadie  v.  114;  Lomerson  v.  Johnston,  44  N. 
Slimmon,  26  N.  Y.  9,  82  Am.  Dec.  J.  Eq.  93,  13  A.  8;  Ingersoll  v. 
395  and  note;  Adams  v.  Bank,  116  Roe,  65  Barb.   (N.  Y.)   346. 

N.  Y.  606,  23  N.  E.  7,  6  L.  R.  A.  1.  Haynes  v.  Rudd,  83  N.  Y.  251, 

491  and  note,  15  Am.  St.  Rep.  447;  102   N.  Y.   372,   55   Am.   Rep.   815; 

Green  v.  Scranage,  19  Iowa,  46,  87  Smith  v.  Rowley,  66  Barb.   (N.  Y.) 

Am.    Dec.    441;    Taylor   v.    Jaques,  502. 
106  Mass.  291. 

566 


Cb.    16  IMPLIED    CONTRACTS.  §    500 

by  payment  of  tbc  irioncy  tbereon,  tbo  courts  will  refuse  to  grant 
relief  and  leave  tbe  parties  wbere  tbey  bave  placed  tbemselves. 
An  action  for  money  so  paid  cannot  be  maintained  wbere  tbe 
parties  are  really  in  pari  delicto.^ 

Tbere  is  a  distinction  between  tbo&e  cases  in  wbicb  one  of  tbe 
parties  bas,  by  an  illegal  act,  taken  an  advantage  of,  and  op- 
pressed tbe  otber,  and  tbose  in  wbicb  it  is  not  possible  to  dis- 
tingiiisb  between  tbe  parties  as  to  tbe  degree  of  tbeir  criminality. 
Tbns,  wbere  usury  bas  been  paid,  it  is  considered  tbat  tbe  lender 
bas  availed  bimself  of  tbe  distress  of  tbe  borrower  and  bas  vio- 
lated tbe  law  to  extort  from  bim  more  tban  tbe  lawful  rate  of 
interest.^  In  transactions  probibited  by  statute  for  tbe  protec- 
tion of  one  set  of  men  from  anotber  set  of  men  tbe  parties  are 
not  in  pari  delicto.* 

Wbile  a  contract  may  be  illegal,  yet  tbe  parties  may  not  be  in 
pari  delicto.  Tbus,  a  business  of  promoting  marriages  is  against 
policy  of  tbe  law  and  public  interest,  and  a  party  paying  money 
to  a  matrimonial  bureau  may  recover  it  back.^  Unless  tbe  par- 
ties are  in  pari  delicto  as  well  as  particeps  criminis,  tbe  courts, 
altbougb  tbe  contract  is  illegal,  will  afford  relief  to  tbe  more 
innocent  ])arty.^  So  premiums  paid  for  tbe  insurance  of  lottery 
tickets  may  be  recovered,  as  tbe  plaintiff  is  not  equally  giiilty 
witb  tbe  defendant.'' 

Courts,  botb  of  law  and  equity,  bold  tbat  two  parties  may 
concur  in  an  illegal  act  witbout  being  deemed  in  all  respects  in 
pari  delicto. 

In  sucb  cases  relief  will  be  afforded  to  tbe  less  guilty  party 

2.  Gotwaet  v.  Neal,  25  Md.  435 ;  5.  Duval  v.  Wellman,  124  X.  Y. 
Dixon  V.  Olmstead,  9  Vt.  310,  31  156,  26  N.  E.  343;  Smith  v.  Brim- 
Am.  Dec.  629;  Collins  v.-  Blantern,  ing,  2  Vern.  392;  Boynton  v.  Hub- 
2  Wilson,  341;  Wilder  v.  Collier,  7  bard,  7  Mass.  112;  Goldsmith  v. 
Md.  273,  61  Am.  Dec.  346.  Bruning,  1  Eq.  Cas.  Abr.  89;  Craw- 

3.  Wheaton  V.  Hibbard,  20  Johns.  ford  v.  Rnssell,  62  Barb.  (N.  Y.) 
(N.  Y.)  290,  11  Am.  Dec.  284.  92. 

4.  Browning  v.  Morris,  2  Cowp.  6.  Tracy  v.  Talmage,  14  N.  Y. 
790.     See,  also,   Smith  v.  Bromley,  102,  67  Am.  Dec.  132  and  note. 

6   Doug.   696;    Schroeppel   v.   Corn-  7.  Mount  v.  Waite.  7  Johns.   (N. 

ing,  6  N.  Y.  107,  115,  116.  Y.)  433. 

56Y 


§§  500,  501         OPEEATION  OF  CONTBACTS.         CL.  16 

where  lie  appears  to  liave  acted  under  circumstances  of  impo- 
sition, hardship,  or  undue  influence,  and  especially  where  there 
is  a  necessity  of  supporting  public  interest,  or  a  well-settled 
policy  of  the  law,  whether  that  policy  be  declared  in  the  statutes 
of  the  State  or  be  the  outgrowth  of  the  decisions  of  the  courts.* 

§  501.  Voluntary  payment  of  money. — If  a  party,  with  full 
knowledge  of  the  facts,  voluntarily  pays  a  demand  unjustly 
made  on  him,  and  attempted  to  be  enforced  by  legal  proceed- 
ings, he  cannot  recover  back  the  money,  as  paid  by  compulsion, 
unless  there  be  fraud  in  the  party  enforcing  the  claim,  and  a 
knowledge  that  the  claim  is  unjust.  And  the  case  is  not  altered 
by  the  fact  that  the  party,  so  paying,  protests  that  he  is  not  an- 
swerable, and  gives  notice  that  he  shall  bring  an  action  to  recover 
the  money  back;  the  party  has  an  option,  whether  to  litigate 
the  question  or  submit  to  the  demand  and  pay  the  money.® 

An  early  case^"  decided  that  money  paid,  even  under  a  judg- 
ment of  a  court  of  competent  jurisdiction,  could  be  recovered 
back,  if  in  equity  and  good  conscience  the  party  receiving  it 
was  not  entitled  to  hold  it ;  this  doctrine  was  never  deemed  satis- 
factory. The  courts  for  a  long  time  endeavored  to  sustain  this 
doctrine;  but  finally  established  this  rule  that  a  party  may  in 
equity  and  good  conscience  continue  to  hold  money  voluntarily 
paid  to  him  under  no  mistake  of  fact,  and  without  fraud  on  his 
part.^  The  rule  is  now,  that  wherever  a  party  has  an  oppor- 
tunity to  plead  and  avail  himself  of  a  legal  defense,  and  pays 
money,  though  under  protest,  he  cannot  recover  it  back,  for  the 

8.  1  Pom.  Eq.  403;  Story's  Eq.  (Mass.)  115;  Regan  v.  Baldwin, 
300.  126  Mass.  485,  30  Am.  Rep.  689. 

9.  Brisbane  v.  Dacres,  5  Taunt.  10.  Moses  v.  Macpherlan,  1  W. 
152;    Brown   v.   McKinally,    1   Esp.  Bl.  219. 

279;  Milnes  v.  Duncan,  6  Barn.  &  11.  Brisbane  v.  Dacres,  5  Taunt. 

Cr.  679;  Cadaval  V.  Collins,  4  Adol.  143;    Benson    v.    Monroe,    7    Cush. 

&  El.  858,  6  Nev.  &  Man.  324;  Ben-  (Mass.)     125,    54    Am.    Dec.    716; 

son    V.    Monroe,    7    Cush.     (Mass.)  Regan  v.   Baldwin,   126  Mass.  485, 

125,    54   Am.    Dec.    716;    Bacon   v.  30  Am.  Rep.  689;  Brown  v.  McKin- 

Bacon,     17     Pick.      (Mass.)      134;  ally,  1  Esp.  279. 
Forbes      v.      Appleton,      5      Cush. 

568 


Ch.     16  IMi'LlED    CONTE^ICTS.  §§    501,  502 

payment  is  not  compulsory  but  voluntary.^  So  where  a  shop 
was  rendered  unfit  for  use  by  fire,  and  the  lessor  does  not  repair 
as  he  was  legally  bound  to  do,  and  refuses  to  make  a  rebate  of 
rent  to  the  tenant,  and  demands  full  rent  of  the  lessee  which  is 
paid  under  protest  by  the  latter,  the  lessee  cannot  recover  back 
the  overpayment,  for  the  payment  was  voluntary.^^ 

§  502.  As  to  third  parties  with  notice. — When  a  third  party 
who  has  received  a  specific  sum  of  money,  which  he  knows 
belongs  to  another,  refuses  to  deliver  it  to  the  owner,  the  latter 
can  recover  it  in  an  action  of  assumpsit/  Thus,  money  bet 
on  an  election  can  be  recovered  by  the  person  depositing  it  with 
the  stakeholder  if  demanded  before  payment  to  the  winner,  on 
the  ground  that  such  bet  being  prohibited  by  law,  there  is  an 
implied  promise  on  the  part  of  the  stakeholder  to  repay  the 
money  to  its  legal  owner.^  So  the  holder  of  stolen  money,  if 
he  has  knowledge  of  the  theft,  holds  the  money  for  the  rightful 
owner  who  can  recover  it  on  the  implied  promise  to  pay  it.^ 
An  action  for  money  had  and  received,  will  lie  by  the  true  owner 
of  money  against  a  third  person  into  whose  hands  it  came  mala 
fide,  provided  identity  can  be  traced  or  ascertained.*  Thus, 
when  a  payee  of  a  promissory  note  has  placed  it  in  the  hands 
of  an  agent,  who  has  in  turn  placed  it  in  the  hands  of  a  third 
person,  who  has  made  the  collection  and  misapplied  the  pro- 
ceeds, an  action  by  the  payee  for  money  had  and  received,  lies 
against  the  third  person.^     And  money  fraudulently  obtained 

4.  Hamlet  v.  Richardson,  9  Bing.  556;  Forscht  v.  Green,  53  Pa.  St. 
644;    Benson    v.    Monroe,    7    Cush.        138. 

(Mass.)   125,  54  Am.  Dec.  716.  3.  Hindmarck    v.    HoflFman,    127 

5.  Regan  v.  Baldwin,'  126  Mass.  Pa.  St.  284,  18  A.  14,  4  L.  R.  A. 
485,  30  Am.  Rep.  689.  308  and  note. 

1.  Mason  v.  Prendergast,  120  N.  4.  Clarke  v.  Shee.  1  Cowp.  197. 
Y.  536,  24  N.  E.  806;  Bayne  v.  S.Harrison  Mach.  Works  v.  Co- 
United  States,  93  U.  S.  642;  Cal-  quillard,  26  111.  App.  513.  See,  also, 
land  V.  Loyd,  6  Mees.  &  Wei.  26.  Drovers  Nat.  Bank  v.  O'Hare,   119 

2.  McAllister  v.  Hoffman,  16  111.  646,  10  N.  E.  360;  Allen  v. 
Serg.  &  R.    (Pa.)    147,  16  Am.  Dec.  Stenger,  74  HI.  120. 


569 


§§    502,  503  OPERATION    OF    CONTEACTS.-  Cll.     16 

and  in  the  hands  of  a  mere  depositary,  may  be  recovered  by  the 
true  owner.^ 

§  503.  Receiving  benefits  of  a  fraud — Agency. — The  doe- 
trine  prevails  at  law  and  in  equity,  that  a  person,  though 
innocent,  cannot  avail  himself  of  an  advantage  obtained  by 
the  fraud  of  another,  unless  there  is  some  consideration  mov- 
ing from  him.  Although  a  third  person  shall  not  be  punished 
for  the  fraud  of  another,  he  shall  not  avail  himself  of  it.^  The 
rule  is  general,  that  if  one  who  assumes  to  do  an  act  which  will 
be  for  the  benefit  of  another  commits  a  fraud  in  so  doing,  and 
the  person  to  whose  benefit  the  fraud  will  enure  seeks,  after 
knowledge  of  the  fraud,  to  avail  himself  of  that  act,  and  to 
retain  the  benefit  of  it,  he  must  be  held  to  adopt  the  whole  act, 
fraud  and  all,  and  to  be  chargeable  with  the  knowledge  of  it, 
so  far,  at  least,  as  relates  to  his  right  to  retain  the  benefit  so  re- 
ceived.^ 

Therefore,  if  a  treasurer  of  a  corporation  is  a  defaulter,  and 
his  defalcation  is  unknown,  and  he  steals  money  from  a  third 
person  and  places  it  with  the  funds  of  the  corporation  in  order 
to  conceal  and  make  good  his  defalcation,  and  the  corporation 
uses  the  money  as  its  own,  no  other  officer  knowing  any  of  the 
facts,  the  corporation  does  not  thereby  acquire  a  good  title  to 
the  money,  as  against  the  true  owner,  but  the  latter  may  main- 

6.  Tradesman's  Bank  v.  Merritt,  8.  Bush  v.  Moore,  133  Mass.  198  j 
1  Paige  (N.  Y.),  302;  Mechanic's  Rogers  v.  Palmer,  102  U.  S.  263; 
Bank  v.  Levy,  3  Paige  (N.  Y.),  National  Security  Bank  v.  Cush- 
606;  Pennell  v.  Deffell,  4  De  G.  M.  man,  121  Mass.  490;  Suit  v.  Wood- 
«&  G.  372.  hall,    113    Mass.    391;    Bennett    v. 

7.  Robson  v.  Calze,  1  Doug,  228;  Judson,  21  N.  Y.  238;  Grans  v. 
Atlantic  Bank  v.  Bank,  10  Gray  Hunter,  28  N.  Y.  389;  Glyn  v. 
(Mass.),  532;  Olmsted  V.  Hotailing,  Baker,  13  East,  509;  Dresser  v. 
1  Hill  (N.  Y.),  317;  Udell  v.  Ather-  Norwood,  17  C.  B.,  N.  S.  466;  Bour- 
ton,  7  Hurl.  &  N.  171;  Huguenn  sot  v.  Savage,  L.  R.  2  Eq.  134;  Rol- 
V.  Boseley,  14  Ves.  273;  Scholefield  land  v.  Hart,  L.  R.  6  Ch.  678;  Es- 
V.  Templer,  4  De  G.  &  J.  429 ;  Tap-  pin  v.  Pemberton,  3  De  G.  &  J. 
ham  V.  Portland,  1  De  G.  J.  &  S.  547;  British,  etc.  Tel.  Co.  v.  Bank, 
517;  Russell  v.  Jackson,  10  Hare,  L.  R.  7  Exeh.  119;  Bradley  v. 
204.  Riches,  9  Ch.  D.  189;  Blackburn  v. 

570 


Ch.   IG 


IMPLIED    CONTEACTS. 


}§  503,504 


tain  an  action  ag'ainst  the  corporation  to    recover    back    the 
same.® 


§  504.  Money  received  in  payment  of  debts. — Money  re- 
ceived by  fraud  or  felony  cannot  be  followed  by  the  true  owner 
into  the  hands  of  one  who  has  received  it  bona  fide  for  a  valu- 
able consideration  in  due  course  of  business.^  It  is  absolutely 
necessary  for  practical  business  transactions  that  the  payee  of 
money  in  due  course  of  business  shall  not  be  put  upon  inquiry  at 
his  peril  as  to  the  title  of  the  payer.  It  would  introduce  great 
confusion  into  commercial  dealings  if  the  creditor  who  receives 
money  in  payment  of  a  debt  is  subject  to  the  ri?k  of  accounting 
therefor  to  a  third  person  who  may  be  able  to  show  that  the 
debtor  obtained  it  from  the  latter  by  felony  or  fraud.  The 
law  wisely,  from  considerations  of  public  policy  and  conven- 
ience, and  to  give  security  and  certainty  to  business  transac- 
tions, adjudges  that  the  possession  of  money  vests  the  title  in 
the  holder  as  to  third  persons  dealing  with  him  and  receiving 
it  in  due  course  of  business  and  in  good  faith  upon  a  valid 
consideration.  If  the  consideration  is  good  between  the  par- 
ties, it  is  good  as  to  all  the  world. ^ 

Money,  or  negotiable  securities,  transferred  to  a  third  person, 
who  receives  them  innocently  as  property  of  the  person  from 
whom  they  came,  for  a  valuable  consideration,  cannot  be  fol- 
lowed by  the  true  owner;  and  the  same  rule  extends  to  such 
property  received  by  a  firm  from  one  of  its  members.^ 

A  large  share  of  the  business  of  the  world  is  carried  on  by 


Vigors,    17   Q.   B.   D.   553,   12   App. 
Cas.  531. 

9.  Atlantic  Cotton  Mills  v.  Or- 
chard Mills,  147  Mass.  2G8.  17  N. 
E.  496,  9  Am.  St.  Rep.  698. 

1.  Miller  v.  Race,  4  Burr.  452. 

2.  Stephens  v.  Board,  79  N.  Y. 
183,  35  Am.  Rep.  511;  Miller  v. 
Race,  4  Burr.  452;  Newhall  v. 
Wyatt,  139  N.  Y.  452,  36  Am.  St. 
Rep.   712,   34   N.   E.    1045;    South- 


wick  V.  Bank,  84  N.  Y.  420,   434; 
Justh  V.  Bank,  50  N.  Y.  478. 

3.  Lime  Rock  Bank  v.  Plimpton, 
17  Mass.  159;  Greenfield  School 
Dist.  V.  Bank,  102  Mass.  174; 
Thacher  v.  Pray,  113  Mass.  291,  18 
Am.  Rep.  480;  Ex  parte  Apsey,  3 
Bro.  C.  C.  265 ;  Jaques  v.  IVIarquand, 
6  Cow.  (N.  Y.)  497;  Dunlap  v. 
Lewis,  49  Iowa,   177. 


571 


§§    504,  505  OPERATION    OF    CONTRACTS.  Ch.    16 

means  of  bills  of  exchange  drawn  upon  persons  liable  to  pay 
or  for  the  accommodation  of  the  drawers  willing  to  pay  them. 
Hence,  the  protection  and  encouragement  of  trade  and  com- 
merce and  considerations  of  public  policy  and  convenience, 
require  that  when  such  a  bill  is  paid  to  one  who  holds  it  in  good 
faith  and  for  value  he  should  not  be  called  upon  afterwards 
to  account  for  the  money  paid.* 

The  doctrine  that  an  antecedent  debt  is  not  such  a  considera- 
tion as  will  cut  off  the  equities  of  third  parties,  in  respect  to 
negotiable  securities  obtained  by  fraud,  has  no  application  to 
money  so  obtained.^ 

§  505.  Chattels  wrongfully  obtained. — If  a  third  party  re- 
ceives goods  which  have  been  wrongfully  obtained  and  con- 
verts or  sells  them,  the  rightful  owner  may  recover  from  him 
the  value  of  the  goods,  unless  the  recipient  has  received  them 
hona  fide  and  paid  a  valuable  consideration.  Bank  notes  are 
now  so  far  considered  like  common  current  money  that  they  can- 
not be  followed  by  the  original  owner  into  the  hands  of  a  hona 
fide  holder  for  a  valuable  consideration  without  notice.^ 

A  check  must  be  considered  in  the  same  right  as  a  promis- 
sory note  taken  after  it  is  due.  A  check  is  payable  immediate- 
ly, and  the  holder  keeps  it  at  his  peril,  and  a  person  taking  it 
after  it  is  due,  takes  it  with  all  the  equities.  So  where  a  check 
is  taken  by  a  third  party  after  its  date  of  execution,  and  which 
had  been  lost  and  found  by  the  second  party  who  passed  it,  the 
third  party  is  liable  to  the  real  owner  for  it.^ 

12.  Hamlet  v.  Richardson,  9  Bing.  1.  Lowndes  v.  Anderson,  13  East, 
344;  Stephens  v.  Board,  79  N.  Y.  130;  Safford  v.  Wyckoflf,  4  Hill  (N. 
183,  35  Am.  Rep.  511;  Foster  v.  Y.),  442;  Glyn  v.  Baker,  13  East, 
Green,    7    Hurl.    &    N.    881;    State  509. 

Bank  v.   United  States,   114  U.  S.  2.  Down  v.   Hailing,   4   Barn.  & 

401,  5  S.  Ct.  888.  Cr.  330. 

13.  Regan  v.  Baldwin,  126  Mass. 
183,  35  Am,  Rep.  511. 


572 


CHAPTER  XVII. 

Assignments. 


ARTICLE  I. 
Voluntary  Assignments. 

Section  506.  For  Benefit  of  Creditors. 

507.  Set-off  Against  Assignee. 

508.  Priorities. 

509.  Coupons — Theater  Tickets. 

510.  Bills  of  Lading. 

511.  Drawing  Draft  by  Consignor. 

512.  Bills  of  Lading — Negotiability. 

513.  Warehouse  Receipts. 

514.  Nature  of  Warehouse  Receipts. 

§  506.  Voluntary  assignment  for  benefit  of  creditors. — The 

assignee  of  an  insolvent  assignor  or  corporation  under  an  asr 
signment  for  the  benefit  of  creditors,  takes  the  property  sub- 
ject to  whatever  equities  existed  against  the  assignor,  the  as- 
signee succeeds  to  the  rights  of  the  insolvent  assignor  or  cor- 
poration as  they  existed  at  the  date  of  the  assignment,  and  no 
other  or  greater  rights.  However,  the  authorities  are  not  en- 
tirely harmonious,  but  the  rule  as  stated  in  the  text  has  the 
following  of  the  majority  of  the  courts  and  text  writers,  and  is 
the  more  equitable.^ 

1.  McCagg  V.  Woodman,   28   111.  283,    16   A.   761;    Van   Wagoner  v. 

84;   Rothschild  v.  Mack,  115  N.  Y.  Gas   Light    Co.,   23    N.   J.    L.   283; 

1;   21  N.  E.  726;   Hade  v.  McVay,  Clarke   v.    Hawkins,    5    R.    I.    219; 

31  Ohio  St.  231;  American  Bank  v.  Nashville    Trust    Co.    v.    Bank,    91 

Wall.  56  Me.  167;  Chace  v.  Chapin,  Tenn.  336,  18  S.  W.  822,  15  L.  R. 

130   Mass.    130;    Cook  v.   Cole,   55  A.  710  and  note;  Merwin  v.  Austin, 

Iowa,   70,   7   N.  419;    Farmers'  De-  58  Conn.  22,  18  A.  1029,  7  L.  R.  A. 

posit  N.  Bank  v.  Bank,  123  Pa.  St.  84  and  note;   Salladin  v.  Mitchell, 

573 


§§    506-508  OPERATION    OF    CONTRACTS.  Ch.    17 

In  those  States  where  the  real  party  in  interest  must  sue  the 
claim,  the  right  of  set-off  exists  in  favor  of  one  who  has  ac- 
quired the  title  to  money  due  from  an  insolvent  bank  on  a  cer- 
tificate of  deposit  issued  to  a  third  person  with  a  formal  as- 
signment by  the  latter.^ 

§  507.  Set-off  against  assignee. — The  debtor  may  set-off  any 
claim  due  him  from  the  creditor  at  the  time  of  the  assignment. 
Thus,  the  maker  of  a  non-negotiable  note  which  has  been  as- 
Siigned  by  the  payee  to  a  third  party,  may  set-off  against  it  a 
note  of  the  payee  which  he  has  purchased  before  notice  of  the 
assignment  of  the  note  executed  by  himself.^  But  the  debtor 
cannot  set-off  an  unmatured  debt  at  the  time  of  the  assignment 
of  the  assignor  against  the  assignee.*  And  the  debtor  cannot 
set-off  a  claim  afterwards  acquired.^  So  where  a  laborer  has 
assigned  his  wages  Avhich  are  to  be  earned  in  the  future  under 
a  contract  already  made,  he  cannot  set  up  a  claim  against  the 
assignee  which  is  wholly  independent  of  the  contract  of  assign- 
ment, and  which  accrued  after  the  assignment.^ 

§  508.  Priorities. — The  question  which  of  different  assignees 
of  a  chose  in  action  by  express  assignment  from  the  same  per- 
son will  have  the  prior  right  is  one  in  respect  to  which  there 
is  much  conflict  of  authority.^  But  the  better  rule  is  that 
where  two  assignments  of  a  chose  in  action,  for  a  valuable  con- 
sideration, are  made  to  different  persons,  the  assignee  who  first 

42  Nebr.  859,  61  N.  W.  127;  Cox  v.  ens,  20  Conn.  73;  Abshire  v.  Corey, 

Valkert,    86    Mo.    505;    Sehuler    v.  113  Tnd.  484,  15  N.  E.  685. 

Israel,  120  U.  S.  506,  7  S.  Ct.  648 ;  4.  Follett  v.   Buyer,   4   Ohio   St. 

Carr  v.  Hamilton,  129  U.  S.  252,  9  586;     Backus     v.     Spaulding,     129 

S.  Ct.  295;  Pom.  on  Bern.  163,  169.  Mass.    234;    Roberts   v.    Carter,    38 

Compare  Eastern  Bank  v.   Capron,  N.  Y.  107. 

22  Conn.  639;  Haxton  v.  Bishop,  3  5.  Weeks    v.    Hunt,    6    Vt.    15; 

Wend.    (N.   Y.)    13.  Goodwin  v.   Cunningham,   12  Mass. 

2.  Salladin  v.   Mitchell,   42   Neb.  192;  Crayton  v.  Clark,  11  Ala.  787. 
859,  61  N.  W.  127.  6.  St.  Andrew  v.  Manuf.  Co.,  134 

3.  St.  Louis   Nat.   Bank  v.   Gay,  Mass.  42. 

101  Cal.  286,  35  P.  876;  McCabe  v.  1.  Pom.  Eq.  Jur.  693;   Story  Eq. 

Gray,  20  Cal.  509;  Adams  v.  Leav-       Jur.   1047. 

574 


Ch.  17 


ASSIGNMENTS. 


§    508 


gives  notice  of  his  claim  to  the  debtor  has  the  prior  right, 
though  the  assignment  to  him  is  later  in  date  than  that  to  the 
other  assignee.^ 

It  is  held  that  in  order  to  perfect  the  assignee's  title  he  must 
immediately  give  notice  of  the  assignment  to  the  debtor,  for 
otherwise  a  priority  of  right  may  be  obtained  by  a  subsequent 
assignee,  or  the  debt  may  be  discharged  by  a  payment  before 
such  notice.^  So  a  subsequent  purchaser  of  a  chose  in  action 
will  be  preferred  over  a  prior  purchaser,  who  neglects  to  give 
notice  of  his  assignment,  and  warns  others  not  to  buy/  Hence, 
notice  of  an  assignment  of  a  demand  or  obligation  given  to  a 
debtor  fixes  the  right  of  the  parties  and  protects  the  assignee, 
though  it  be  a  partial  assignment.^ 

But  this  is  not  the  rule  adopted  by  all  the  courts. 

In  many  States  the  assignment  of  a  chose  in  action  is  com- 
plete upon  the  mutual  assent  of  the  assignor  and  assignee,  and 
gains  no  additional  validity  as  against  third  persons  by  notice 


2.  Tuder  v.  Perkins,  3  Day 
(Conn.),  364;  Vanbuskirk  v.  Ins. 
Co.,  14  Conn.  444,  36  Am.  Dec.  492; 
Dearie  v.  Hall,  3  Russ.  1;  Love- 
ridge  V.  Cooper,  3  Euss.  30 ;  Timson 
V.  Ramsbottom,  2  Keen,  35;  Foster 
V.  Coekerell,  3  Ch.  &  F.  456; 
Barney  v.  Douglass,  19  Vt.  98; 
Bishop  V.  Slocomb,  10  Conn.  446; 
Judson  V.  Corcoran.  17  How.  (U. 
S.)  612;  Spain  v.  Hamilton,  1 
Wall.  (U.  S.)  604;  Bisph.  Eq.  169; 
Stocks  V.  Dobson,  4  DeG.  M.  &  G-. 
15;  In  re  Gillespie,  15  Fed.  Rep. 
734;  Methven  v.  Heat  &  Power  Co., 
66  Fed.  Rep.  113;  White  v.  Prentiss, 

3  T.  B.  Mon.  (Kj^)  448;' Clodfelter 
V.  Cox,  1  Sneed  (Ter.n.),  330.  60 
Am.  Dec.  157;  Murdook  v.  Finney. 
21  Mo.  138;  Ward  v.  Morrison,  23 
Vt.  593;  Foster  v.  Blackstonc,  1 
Myl.  &  K.  297;  Willes  v.  Greenhill, 

4  D.    F.    &    J.    147:    In    re    Wvatt 


(1892),  1  Ch.  188;  Ward  v.  Don- 
combe  (1893),  App.  Cas.  369,  2 
Lead.  Cas.  Eq.  (part  2),  1165,  1166, 
and  cases  cited;  Cooper  v.  Fynmore, 
3  Russ.  60;  Bloomer  v.  Henderson, 
8  Mich.  395,  77  Am.  Dec.  453; 
Meux  V.  Bell,  1  Hare,  73;  Adams 
Eq.  53;  Matt  v.  Clark,  9  Pa.  St. 
399,  49  Am.  Dec.  556;  Smith  v. 
Smith,  2  Cromp.  &  M.  231. 

3.  Loveridge  v.  Cooper,  3  Russ. 
30.  See.  also,  Murray  v.  Lylburn, 
2  Johns.  Ch.  (N.  Y.)  442;  Moore 
V.  Holcombe,  3  Leigh  (Va.),  597, 
24  Am.  Dec.  683.  Compare  Garland 
V.  Richeson,  4  Rand.    (Va.)    270. 

4.  Judson  V.  Corcoran,  17  How. 
(U.  S.)  612;  Bayley  v.  Greenleaf, 
7  Wheat.   (U.  S.)   46. 

5.  Schilling  v.  Mullen,  55  Minn. 
122,  56  N.  W.  586,  43  Am.  St.  Rep. 
475. 


5Y5 


§  508  OPERATION  or  CONTRACTS.  Ch.  17 

to  the  debtor.®  So  as  between  a  prior  and  subsequent  assignee  of 
the  same  debt  it  is  not  necessary  to  the  validity  of  the  first  assign- 
ment, that  notice  thereof  should  be  given  to  the  debtor.^  Because 
there  being  no  legal  title  in  the  assignees  of  a  chose  in  action,  and 
the  equities  being  equal,  he  who  is  first  in  time  has  the  better 
right.^  That  the  failure  to  give  notice  of  an  assignment  is  im- 
material, as  regards  one  claiming  under  the  assignor  as  a  credi- 
tor or  volunteer,  it  being  a  general,  if  not  invariable  rule,  that 
one  cannot  give  what  he  could  not  justly  hold,  and  that  the 
right  of  a  creditor  does  not  rise  higher  than  that  of  the  debtor, 
and  is  subject  to  all  the  equities  that  could  have  been  enforced 
against  him.^ 

So  a  subsequent  assignee  takes  the  title  of  the  chose  in  action 
subject  to  all  equities  existing  between  any  prior  assignor  and 
assignee.^"  And  when  there  is  a  secret  agreement  between 
the  obligor  and  obligee  restricting  the  collection  of  the  bond  to 
certain  property  of  the  obligor,  and  the  assignee  of  the  bond 
for  value  who  purchases  without  notice  of  the  agreement,  but 
without  inquiry  of  the  obligor,  will  be  affected  thereby. ^^ 

6.  Thayer  v.  Daniels,  113  Mass.  field  v.  Martin,  3  Mass.  558;  Dix  v. 
129.  Cobb,  4  Mass.  508;   Wood  v.  Part- 

7.  Bank  v.  Gettinger,  3  W.  Va.  ridge,  11  Mass.  488;  Providence 
317;  Harrison  v.  Bank,  9  W.  Va.  County  Bank  v.  Benson,  24  Pick. 
424;  Tingle  v.  Fisher,  20  W.  Va.  (Mass.)  204;  Martin  v.  Potter,  11 
497.  Gray  (Mass.),  37,  71  Am.  Dec.  689; 

8.  Tingle  v.  Fisher,  20  W.  Va.  Pvichards  v.  Smith,  9  Gray  (Mass.), 
497;  Muir  v.  Schenck,  3  Hill  (N.  315;  Kingman  v.  Perkins,  105  Mass. 
Y.),  228,  38  Am.  Dee.  633;  Kam-  111.  See,  also,  McClintie  v.  Wise, 
ena  v.  Huelbig,  23  N.  J.  Eq.  78;  25  Gratt.  (Va.)  448,  18  Am.  Rep. 
Newby  v.  Hill,  2  Met.  (Ky.)  530;  694;  Grubb  v.  Wysor,  32  Gratt. 
Ohio   Ins.   Co.  v.   Ross,   2  Md.   Ch.  (Va.)    127. 

25;    Harrison   v.    Bank,    9   W.   Va.  9.  Beavan  v.  Oxford,  6  DeG.  M. 

424;  Com.  Nat.  Bank  v.  Burch,  141  &  G.  492;   Kendricky  v.  Jervis,  22 

HI,  519,  31  N.-  E,  420,  33  Am.  St.  Beavan,    1 ;    Pickering    v.    Railway 

Rep.  331  and  note;  Shafer  v.  Riley,  Co.,  L.  R.  3  C.  P.  235,  248. 

50  N,  Y.  66;  Moore  v.  Bank,  55  N.  10.  Sutherland  v.  Reeve,  151  HI. 

Y.  41,  14  Am.  Rep.  173;   Greentree  384,   38  N.   E.   130. 

V.  Rosenstock,  61  N.  Y.  593;  Trus-  11.  Lane  v.   Smith,    103   Pa.   St. 

tees  V.  Wheeler,  61  N.  Y.  104;  Sum-  415. 

mers  v.  Huston,  48  Ind.  230;  Wake- 

5Y6 


Ch.    17  ASSIGNMENTS.  §    509 

§  509.  Coupons — Theatre  tickets. — If  coupons  are  drawn 
so  that  they  can  be  separated  from  the  bond,  they  are  like  the 
bond  neg'otiable,  if  liaviiiii-  that  form  ;  the  owner  of  them  can 
sue  on  the  coupon  without  producing  the  bond  to  which  they 
were  attached,  or  without  being  interested  in  the  bond.^  Bonds 
and  their  coupons  may  circulate  together  or  separately,  and 
suits  on  coupons  are  sustained  entirely  independently  of  the 
bonds  to  which  they  were  originally  annexed.  And  it  is  of 
no  consequence  whether  they  are  promissory  notes,  bills,  drafts, 
or  checks,  for  they  have  the  same  quality  of  negotiability  as 
any  of  those  instruments,  and  the  holder  sues  upon  them  and 
recovers   in  his  own  name.^ 

But  a  coupon  to  be  negotiable,  must  be  so  upon  its  face  with- 
out reference  to  any  other  paper.* 

A  theater  ticket  is  commonly  held  to  be  a  mere  license,  and 
not  a  contract  which  may  be  assigned.*  This  is  on  the  ground 
that  the  proprietor  of  a  theater  has  a  right  to  say  whom  he  will 
or  will  not  admit  to  his  theater.  A  theater  ticket  is  simply  a 
license  to  the  party  presenting  the  same  to  witness  a  perform- 
ance to  be  given  at  a  certain  time,  and  being  a  personal  license 
it  may  be  revoked.^  But  if  the  ticket  to  a  theater  or  concert 
is  not  a  contract,  there  is  a  contract  behind  it,  a  contract  of  pur- 
chase. If  the  ticket  is  refused  and  the  purchaser  is  not  per- 
mitted to  enter  the  theater  or  concert  hall,  then  he  may  re- 
cover back  the  purchase  price  and  also  the  damages  that  may 
directly  result  therefrom.®  Hence,  there  must  be  a  contract 
between  the  parties  and  an  implied  provision  exists  that  the 
purchaser  has  a  right  to  transfer  it.     And  so  it  seems  that  such 

1.  Tliompson  v.  Lee  County,  3  3.  Augusta  Bank  v.  Augu.-ta,  49 
Wall.    (U.  S.)   327;  Beaver  County        Me.  507. 

V.  Armstrong,  44  Pa.  St.  63;  Haven  4.  Collister  v.  Haynian,  75  X.  Y. 

Railroad  Co.,  109  Mass.  88.  S.  1102,  71  App.  Div.  316. 

2.  Beaver   County  v.   Armstrong,  5.  Purcell    v.    Daly,    19    Abbot'3 
44  Pa.  St.  63;  Thomas  v.  Leo  Coun-  New   Cases,   301;    Coleman   v.   Fos- 
ty,  3  Wall.   (U.  S.)   327;  Kenard  v.  ter,   1  Hurl,  and  Norm.  37;   Drake 
Cass,  3  Dillon,  C.  C.  147;  Haven  v.  v.  Wells,   11   Allen    (Mass.),   144. 
Railroad  Co.,  109  Mass.  88.  6.  Purcell    v.    Daly,    19    Abb.    N". 

Cas.  301. 

517 


§§    509,  510  OPERATION    OF    CONTRACTS.  Oh.    17 

a  ticket  gives  something  more  than  a  license  to  enter  the  theater 
or  concert  hall.''  If  the  ticket  contains  a  statement  that  it  is 
a  personal  license  and  not  transferable,  yet  iu  some  vStates 
actual  notice  of  this  provision  must  be  brought  home  to  the 
purchaser  by  actual  notice  and  his  acceptance  before  it  will 
bind  him.  In  other  jurisdictions,  the  mere  acceptance  of  the 
ticket  binds  the  vendee  as  to  such  provision.^  Whether  such 
a  right  to  transfer  is  implied  or  not  in  such  a  case  is  certainly 
an  open  question. 

The  doctrine  that  a  theater  ticket,  or  other  ticket  for  a  pub- 
lic entertainment  is  a  mere  license  which  can  be  revoked  at 
any  time  was  announced  in  England  years  ago,^  and  has  been 
followed  by  many  courts  in  the  United  States.  This  doctrine 
is  not  in  accordance  with  the  view  of  American  citizens.  It 
•has  been  correctly  held  that  the  holder  of  a  ticket  for  a  re- 
served seat  in  a  theater  is  entitled  to  tliat  particular  seat  for 
the  time  specified  by  such  ticket,  and  has  more  than  a  mere 
license  to  enter  the  theater,  revocable  at  the  will  of  the  seller, 
that  his  right  under  such  ticket  is  more  in  the  nature  of  a 
lease. ^'^  And  this  view  is  sustained  in  the  dissenting  opinion 
of  Justice  Harlan  in  the  Civil  Rights  Cases,^^  where  it  is 
logically  held  that  a  licensed  theatrical  manager,  whose  place 
of  amusement  is  open  for  public  entertainment  and  to  which 
the  public  are  invited  to  go  and  pay  their  money  for  the  use 
of  a  seat,  is  not  a  mere  private  enterprise  owing  no  duty  to  the 
public,  but  is  a  place  clothed  with  a  public  interest  because 
used  in  a  manner  to  make  it  of  public  consequence  and  to  affect 
the  community  at  large.  This  is  the  true  American  doctrine 
though  the  English  precedents  are  against  it. 

§  510.  Bills  of  lading. — By  statute  in  many  States  and  under 
the  law  merchant,  a  bill  of  lading  is  a  receipt  given  by  a  car- 

7.  Drew  v.  Peer,  93  Pa.  St.  234.  9.  Wood  v.  Leadbetter,   13  M.  <k 
See,  also,  Fitch  v.  Constantine  Hy-        W.  387. 

draulic  Co.,  44  Mich.  74,  6  N.  91.  10.  Drew  v.  Peer,  93  Pa.  St.  236. 

8.  See  Hoadley  v.  Transportation  11.  109  U.  S.  3,  42,  3  S.  Ct.  18. 
Co.,    115   Mass.    304,    15    Am.    Rep. 

106. 

578 


Cll.    17  ASSIGNMENTS.  §§    510,  511 

frier  of  the  goods  to  the  vendor,  for  their  delivery  to  the  con- 
signee. J^Tnmerous  decisions  both  in  England  and  America 
hold  that  where  goods  are  consigned  by  the  vendor  to  the  vendee, 
under  bills  of  lading  in  the  usual  form,  an  attempt  by  the  ven- 
dor to  stop  the  goods  in  transitu  will  be  unavailing  as  against 
an  assignee  of  the  bill  of  lading,  who  took  it  in  good  faith,  for 
a  valuable  consideration,  in  the  usual  course  of  business,  be- 
fore the  attempted  stoppage.^ 

If  the  bill  of  lading  is  assigned,  and  the  legal  title  passes 
to  a  bona  fide  purchaser  for  a  valuable  consideration  before 
the  right  of  stoppage  is  exercised,  the  lien  of  the  vendor  ceases 
as  against  the  assignee,  on  the  well  known  principle  that  a 
secret  trust  will  not  be  enforced  as  against  a  bona  fide  holder 
for  value  of  the  legal  title.^  The  vendor  places  in  the  hands 
of  the  vendee  a  muniment  of  title,  clothing  him  with  the  appar- 
ent ownership  of  the  goods ;  and  a  person  dealing  with  him  in 
the  usual  course  of  business,  who  takes  an  assignment  for  a 
valuable  consideration,  without  notice  of  such  circumstances 
as  under  the  bill  of  lading,  not  fairly  and  honestly  assignable, 
has  a  superior  equity  to  that  of  the  vendor  asserting  a  recent 
lien,  known,  perhaps,  only  to  himself  and  the  vendee.^ 

The  right  of  stoppage  by  the  vendor  is  lost  when,  before  it 
is  exercised,  the  vendee  has  sold  the  goods  and  indorsed  the 
bill  of  lading  to  a  sub-purchaser  for  value  in  good  faith.* 

§  511.  Drawing  of  draft  by  consignor. — The  discount  of  a 
draft  drawn  by  a  consignor  upon  his  consignee,  which  is  ac- 
companied by  the  delivery  of  a  bill  of  lading  to  the  party 
making  the  advance,  not  only  passes  to  such  party  the  legal 
title  to  such  property,  but  in  the  eye  of  the  law  the  transfer 

1.  First  Nat.  Bank  v.  Schmidt,  3.  Brewster  v.  Sims,  42  Cal.  130; 
6  Colo.  App.  216,  40  P.  479:  Lick-  Becker  v.  Hallgarten,  86  N.  Y.  167; 
barrow  v.  Mason,  2  Term  R.  63,  1  Forbes  v.  Railroad  Co.,  133  Mass. 
Smith,  Lead.  Cas.  825.  154;  Kearney  Milling  and  Elevator 

2.  Newhall  v.  Railroad  Co..  51  Co.  v.  Railroad  Co.,  97  Iowa,  719,  66 
Cal.  345,  21  Am.  Rep.  713.  N.   W.   1059,  59  Am.  St.   Rep.   434. 


4.  Loeb  V.  Peters,  63  Ala.  130. 


579 


§§    511,  512  OPEEATION    OF    CONTEACTS.  Ch.    17 

of  the  bill  of  lading  is  regarded  as  an  actual  delivery  and  an 
actual  change  of  possession  of  the  property.^  And  the  fact 
that  the  bill  of  lading  is  drawn  to  order  does  not  prevent  its 
transfer  by  delivery  to  a  third  person  without  indorsement.^ 

§  512.  Bills  of  lading — Negotiability. — It  does  not  neces- 
sarily follow  that  because  a  statute  has  made  bills  of  lading 
negotiable  by  indorsement  and  delivery,  all  the  consequences 
of  an  indorsement  and  delivery  of  bills  and  notes  before 
maturity  ensue  or  are  intended  to  result  from  such  negotia- 
tion. As  to  promissory  notes  the  purchaser  is  not  to  look  be- 
yond the  instrument.^  This  rule  was  first  applied  to  the  case 
of  a  lost  bank-note,^  and  was  put  upon  the  ground  that  the  inter- 
ests of  the  trade,  the  usual  course  of  business,  and  the  fact 
that  bank-notes  pass  from  hand  to  hand  as  coin,  require  it. 
It  was  subsequently  held  applicable  to  drafts.^ 

But  these  principles  can  have  no  application  to  the  case  of 
a  lost  or  stolen  bill  of  lading,  because  the  function  of  that 
instrument  is  entirely  different  from  that  of  a  bill  or  note.  It 
is  not  a  representative  of  money,  used  for  transmission  of 
money,  or  for  the  payment  of  debts  or  for  purchases.  It  does 
not  pass  from  hand  to  hand  as  bank-notes  or  coin.  It  is  a 
contract  for  the  performance  of  a  certain  duty.  The  pur- 
chaser of  a  bill  of  lading  who  has  reason  to  believe  that  his 
vendor  was  not  the  owner  thereof,  or  that  it  was  held  to  secure 
an  outstanding  draft,  is  not  a  bona  fide  purchaser,  nor  entitled 
to  hold  the  property  covered  by  the  bill  against  its  true  owner.* 

5.  Bank  v.  Jones,  4  N.  Y.  497,  55  1.  Goodman  v.  Harvey,  4  Ad.  & 
Am.  Dec.  290  and  note;  First  Nat.  E.  870;  Goodman  v.  Simonds,  20 
Bank  v.  Kelly,  57  N.  Y.  37,  4  Am.  How.  (U.  S.)  343;  Murray  v.  Lard- 
Rep.  650;  City  Bank  v.  Railroad  ner,  2  Wall.  (U.  S.)  100;  Matthews 
Co.,  44  N.  Y.  13G;  Merchants'  Bank  v.  Poytress,  4  Ga.  287. 

V.  Railroad  Co.,  69  N.  Y.  379 ;  First  2.  Miller  v.  Race,  1  Burr.  452. 

Nat.  Bank  v.  Railroad  Co.,  85  Hun,  3.    Peacock    v.    Rhodes,    2  Doug. 

160,  32  N.  Y.  S.  604,  66  N.  Y.  St.  633. 
172.  4.  Shaw  v.  Railroad  Co.,   101  U. 

6.  Merchants'  Bank  v.  Railroad  S.  557.  Compare  Tiednian  v.  Knox, 
Co.,  69  N.  Y.  379;  First  Nat.  Bank  53   Md.   612. 

V.    Railroad    Co.,   85    Hun,    160,    32 
N.  Y.  S.  604,  66  N.  Y.  St.  112. 

580 


Ch.     17  ASSIGNMENTS.  §§    512,  613 

Therefore,  a  stolen  bill  of  lading-,  or  which  has  been  illegally 
transferred,  gives  no  rights  even  to  a  bona  fide  indorsee ;  it  is 
at  most  a  contract  assignable,  but  incapable  of  giving  a  better 
title  than  is  possessed  by  the  assignor.^ 

A  bill  of  lading,  though  transferable  by  delivery  like  mer- 
cantile paper,  is  unlike  such  paper  in  this:  the  assignor  cannot 
acquire  a  better  title  to  the  property  thus  symbolically  deliv- 
ered than  his  assignor  had  at  the  time  of  the  assignment.^  And 
the  possession  of  the  bill  of  lading  by  one  other  than  the  con- 
signee without  indorsement  does  not  justify  the  delivery  of  the 
goods  to  him.' 

§  513.  Warehouse  receipts. — ^Warehouse  receipts  are  made 
negotiable  by  most  of  the  States  by  statute,  and  have,  in  many 
respects,  the  characteristics  of  negotiable  paper.  So  the  in- 
dorsement and  delivery  of  a  warehouseman's  receipt  by  the 
owner  of  the  property  described  in  the  receipt,  to  secure  a 
debt,  passes  the  title  of  the  property  to  the  indorsee,  as  against 
the  claims  of  purchasers  and  creditors  of  the  indorser,^  If  the 
transfer  is  made  by  the  owner  of  the  property,  to  whom  the 
receipt  was  given,  for  the  purpose  of  securing  a  debt  for  ad- 
vances of  money  made  on  the  faith  of  such  transfer,  it  is  a  sym- 
bolic delivery  of  the  property  that  the  receipt  purports  to  repre- 
sent, sufficient  to  create  a  pledge,  and  is  equivalent  to  an 
actual  delivery,  and  will  protect  the  person  to  whom  it  is  trans- 
ferred against  the  claims  of  creditors  and  purchasers.  The 
indorsement  and  delivery  of  the  receipt  have  the  same  effect 
in  transferring  the  title  as  the  delivery  of  the  property.     The 

5.  Shaw  V.  Railroad  Co.,  101   U.  6.  Emery   v.    Bank,   25    Ohio   St. 

S.  557;  Gurney  v.  Behrend,  3  El.  &  360,    18   Am.    Rep.    299:    Straus   v. 

Bl.   622;    Tison  v.   Howard,  57   Ga.  Wessel,  30  Ohio  St.  211. 

410;   Decan  v.  Shipper,  35  Pa.  St.  7.  Louisville,    etc.    R.    R.    Co.    v. 

239,    78   Am.    Dec.    334;    Emery   v.  Barkhouse,    100    Ala.    543,    13    So. 

Bank,  25  Ohio  St.  300,  18  Am.  Rep.  534. 

299;   Straus  v.  Wessel,  30  Ohio  St.  8.  Bank  v.  Hirsch,  59  Ark.  225, 

211;  Dows  V.  Perrin,  16  N.  Y.  325;  27  S.  W.  74. 
First  Nat.  Bank  v.  Shaw.  61  N.  Y. 
283. 

581 


§§    513,  514  OPEHATION    OF    CONTKACTS. 


Ch.  17 


warehouseman  becomes  the  bailee  of  the  holder  of  the  receipt  to 
whom  it  is  transferred,  and  ceases  to  hold  for  the  former  owner.* 
While  a  warehouse  receipt  is  not  negotiable  in  the  sense  in 
which  that  term  is  applied  to  a  promissory  note,  yet  the  trans- 
fer of  such  a  receipt,  accompanied  by  a  sale  or  pledge  of  the 
property  specified  in  the  receipt,  will  have  the  same  effect  as 
the  delivery  of  the  property  to  the  transferee.^" 


§  514.  Nature  of  a  warehouse  receipt. — The  receipt  is  not 
required  to  be  in  any  particular  form.^  If  the  warehouse  re- 
ceipt is  a  contract  it  cannot  be  contradicted  by  oral  evi- 
dence;^ but  if  it  is  a  mere  receipt  it  can,  be  explained  like 
other  receipts.^  An  instrument  executed  and  signed  by  the 
warehouseman  giving  full  description  of  the  property  so  that 
it  can  be  identified  is  sufficient;*  though  no  minute  descrip- 
tion of  the  property  is  necessary.^ 


9.  Harris  v.  Badley,  2  Dill.  C.  C. 
284;  Shepardson  v.  Gary,  29  Wis. 
34;  Puckett  v.  Reed,  31  Ark.  131; 
Durr  V.  Hervey,  44  Ark.  301,  51 
Am.  Rep.  594;  Ferguson  v.  Bank, 
14  Bush  (Ky.),  555,  29  Am.  Dec. 
418;  Young  v.  Lambert,  L.  R.  3  C. 
P.   142;   Stewart  v.  Ins.  Co.,  9  Lea 

(Tenn.),  104;  McNeil  v.  Hill,  1 
Woolw.  C.  C.  96;  Yenni  v.  Mc- 
Namee,  45  N.  Y.  614;  Broadwell 
V.  Howard,  77  HI.  305. 

10.  Burton  v.  Curyea,  40  111.  320, 
89  Am.  Dec.  350;  Gibson  v.  Stevens, 
8  How.   (U.  S.)  384. 


1.  Gibson  v.  Stevens,  8  How.  (U. 
S.)  384.  See,  also,  Harris  v.  Brad- 
ley, 2  Dill.  C.  C.  284;  Puckett  v. 
Reed,  31  Ark.  131. 

2.  Stewart  v.  Ins.  Co.,  9  Lea 
(Tenn.),  104;  Johnston  v.  Browne, 
37  Iowa,  200. 

3.  Hughes  V.  Stanley,  45  Iowa,. 
622;  Carrall  v.  Railroad  Co.,  14 
Mo.  App.  490. 

4.  Harris  v.  Bradley,  2  Dill.  C.  C. 
284:  Puckett  v.  Reed,  31  Ark.  131. 

5.  Bank  v.  Hirsch,  59  Ark.  225- 
27  S.  W.  74. 


582 


Ch.    17  ASSIGNMENTS.  §    515 

ARTICLE  II. 

Assignment  of  Wages  and  Salary. 

Section  515.  In  Equity — Unearned  Wages. 

516.  Etlcct  of  Assignor's  Discharge  in  Bankruptcy. 

517.  Unearned  Salary  of  Public  Officers. 

§  515.  In  equity — Unearned  wages. — It  is  settled  that  in 
equity  an  assignment  of  moneys  not  yet  due  or  earned,  but 
which  are  expected  to  be  earned  in  the  future  under  an  exist- 
ing contract,  is  binding  and  will  be  enforced.^  But  such  an 
assignment  may  be  subject  to  claims  of  other  parties  and  must 
be  taken  by  the  assignee  cum  onere} 

A  person,  however,  who  assigiis  his  future  earnings  must 
be  in  the  actual  employment  of  another.  One  not  engaged  in 
any  employment  for  another,  and  not  under  contract  for  em- 
ployment, cannot,  even  for  a  valuable  consideration,  make  a 
valid  assignment  of  wages  he  may  earn  in  the  future.  Such  an 
assignment  is  a  mere  possibility  of  a  sebsequent  acquisition  of 
property,  which  is  too  vague  and  uncertain  to  be  sustained  as  a 
valid  assigTiment  and  transfer  of  property.^ 

So  a  school  teacher  who  is  indebted  to  another  has  the  legal 
right  to  make  an  assignment  of  his  wages  to  accrue  under  his 
contract  with  the  school  board;  and  when  he  draws  an  order 
on  the  school  treasurer  in  favor  of  his  creditor,  which  is  ac- 

1.  Brewer    v.     Griesheimer,     104  v.  Butler  County,  44  Neb.   110,  62 

111.  App.  323,  35  Chic.  L.  News,  144;  N.  W.  308. 

Mallan   v.   Wenham,   209   111.    253;  2.  Union  Pacific,   etc.   R.   R.   Co. 

East   Lewisburg   L.    &   Manuf.    Co.  v.    Bank.    42    Neb.    469,    60    N.    W. 

V.  Marsh,  91   Pa.   St.  96;   Ruple  v.  886. 

Bindley,  91  Pa.  St.  296;  Taylor  v.  3.  Lehigh  Valley  R.  R.  Co.  v. 
Lynch,  5  Gray  (Mass),  49;  Payne  Woodring,  116  Pa.  St.  513,  9  A.  58; 
V.  Mayor,  4  Ala.  333,  37  Am.  Dec.  Mulhall  v.  Quinn,  1  Gray  (Mass.), 
744;  Greene  v.  Bartholomew,  34  105,  61  Am.  Dec.  414;  Hamilton  v. 
Ind.  235;  Spain  v.  Hamilton,  1  Rogers,  8  Md.  301.  Compare  Ed- 
Wall.  (U.  S.)  604;  Codev.  Carlton,  wards  v.  Peterson,  80  Me.  367,  14 
18  Neb.  328,  25  N.  W.  353;  Perkins  A.  936,  6  Am.  St.  Rep.  207;  Light- 


body  V.  Smith,  125  Mass.  51. 


583 


§    515  OPERATION    OF    CONTRACTS.  Gil.    17 

cepted  by  the  jDroper  officer  of  tlie  school  district,  conditioned  on 
his  completing  his  contract,  and  the  creditor  authorized  the 
school  secretary  to  draw  the  money  for  him,  which  he  did  be- 
fore it  was  garnished,  then  the  fnnd  was  not  subject  to  garnish- 
ment by  creditors  of  the  teacher.'* 

And  so  when  one  assigns  his  wages  to  be  earned  under  an 
engagement  then  existing,  and  when  he  is  actually  at  work 
thereunder,  at  a  fixed  price,  payable  at  a  certain  time,  though 
no  contract  of  employment  existed  for  any  stipulated  time, 
suoh  assignment,  if  accepted,  is  good  as  against  a  garnishment 
by  creditors  of  the  assignor.^  And  such  an  assignment  is  good 
in  the  absence  of  an  express  contract  fixing  a  time  of  employ- 
ment, as  where  the  assignor,  when  he  executed  the  assignment, 
was  employed  at  piece  work  or  by  the  day.®  And  it  is  equally 
well  settled  that  an  assignment  of  wages  expected  to  be  earned 
in  the  future,  and  not  based  upon  an  existing  contract,  engage- 
ment, or  employment  is  void.'' 

The  true  rule  is  that  an  assignment  of  wages  to  be  earned 
is  good  if  accepted,  and  if  at  the  time  it  is  made  there  is  an 
existing  engagement  or  employment  by  virtue  of  which  wages 
are  being,  and  at  future  may  reasonably  be  expected  to  be, 
earned,  even  though  there  is  no  contract  or  fixed  time  of  em- 
ployment.    And  in  the  case  of  a  contract  for  work  or  labor  an 

4.  Johnson  v.  Pace,  78  111.  143;  867,  43  Am.  St.  Rep.  391;  Batts  v. 
Ruple  V.  Bindley,  91  Pa.  St.  296.  Richards  Lumber  Co.,  56  Minn.  14, 

5.  Taylor      v.      Lynch,    5      Gray        57  N.  W.  218. 

(Mass.),   49;    Lannan   v.   Smith,   7  6.  Lannan     v.     Smith,      7     Gray 

Gray  (Mass.),  150;  Hartley  v.  Tap-  (Mass.),   150;    Kane  v.  Clough,  36 

ley,  2  Gray   (Mass.),  566;  Weed  v.  Mich.  436,  24  Am.  Rep.  599. 
Jewett,  7  Met.  (Mass.)   608;  Brack-  7.  Mulhall     v.     Quinn,     1     Gray 

ett  V.  Blake,  7  Met.   (Mass.)  335,41  (Mass.),    105,    61    Am.    Dec.    414 

Am.   Dec.   442   and  note;  Emery  v.  Jerniyn  v.  Moifitt,  75  Pa.  St.  402 

Lawrence,   8    Gush.      (Mass.)      152:  Ruple   v.   Bindley,   91   Pa.   St.  296 

Thayer  v.  Kelley,  28  Vt.  19,  65  Am.  Morrill   v.    Noyes,   56   Me.   458,   96 

Dec.  220;  Augur  v.  Belting  Co.,  39  Am.  Dec.  486;  Runnells  v.  Bosquet, 

Conn.  536;   Garland  v.  Harrington,  60  X.  H.  38;   Lehigh  Valley  R.  R. 

51N.  H.  409;  Wallace  v.  Chair  Co.,  Co.  v.  Woodring,  116  Pa.  St.  513,  9 

16   Gray    (Mass.),   209;    Metcalf  v.  A.  58. 
Kincaid,   87   Iowa,   443,    54   N.    W. 

584 


Cll.    17  ASSIGNMENTS.  §    515 

assignment  of  the  fruits  of  it  niaj  be  good  though  the  labor  to 
be  performed  under  it  has  not  yet  been  commenced.^ 

Courts  of  equity  will  support  assignments,  not  only  of  choses 
in  action,  but  of  contingent  interests  and  expectancies,  and 
of  things  which  have  no  present  actual  existence,  but  rest  in 
potentiality  only,  provided  the  agreements  are  fairly  made, 
and  not  against  public  policy.'  And  if  the  workman  is  era- 
ployed  by  the  piece,  for  no  definite  time  does  not  change  the 
rule'**  or  by  the  day,  the  rule  is  the  same/^  Mere  possibilities 
and  expectancies,  according  to  the  general  course  of  decisions, 
are  assignable  in  equity  for  a  valuable  consideration,  and  equity 
will  enforce  the  assignment  when  the  possibility  or  expec- 
tancies have  changed  into  a  vested  interest  of  possession.-^^ 
Wliether  such  an  assignment  must  be  for  a  reasonable  time 
is  a  question  not  yet  settled  by  any  decisions ;  but  it  would 
seem  that  the  time  of  the  assignment  of  future  earnings  should 
be  limited  to  a  reasonable  time.^^  But  under  this  principle, 
the  exemptions  of  a  married  debtor  do  not  come,  and,  there- 
fore, he  cannot  waive  his  exemptions,  because  the  exemptions 
are  for  the  benefit  of  the  family  of  w-hich  he  is  the  head." 

8.  Metcalf  v.   Kincaid,   87   Iowa,  etc.   Plaster  Co.,  82  Mo.  App.   447, 

443,  54  N.  W.  867,  43  Am.  St.  Rep.  454. 

391;    Hawley   v.    Bristol,   39    Conn.  9.  Field   v.   New   York,   6   N.   Y. 

26;   Devlin  v.  New  York,  63  N.  Y.  179,  57  Am.  Dec.  435  and  note. 

8;   Thayer  v.  Kelley,  28  Vt.   19,  65  10.  Hartley    v.    Tapley,    2    Gray 

Am.  Dec.  220;  Augur  v.  Belting  Co.,  (Mass.),  265. 

39  Conn.  536;   Greene  v.   Bartholo-  11.  Hax    v.    Acme,    etc.    Plaster 

mew,  34  Ind.  235;   Shaffer  v.  Min-  Co..  82  Mo.  App.  447. 

ing   Co.,    55   Md.    74;    Crawford   v.  12.  Warren  v.  Bank,   149  111.  9, 

Brooke,  4  Gill  (Md.),213;  Weed  v.  38    N.    E.    122,    25    L.    R.    A.    746; 

Jewett,  2  Met.  (Mass.)  608,  37  Am.  Young   v.    Jones,    180    111,    216,    54 

Dec.  115;   Field  v.  New  York,  6  N.  N.  E.  235. 

Y.  179,  57  Am.  Dec.  435  and  no<^;  13.  See    Boyland    v.    Leonard,    2 

Garland   v.    Harrington,    51    N.    H.  Allen      (Mass.),     497;     Brewer     v. 

409;     Brackett    v.    Blake,    7    Met.  Griesheimer,   104  111.   App.   323,   35 

(Mass.)    335,  41  Am.  Dec.  442  and  Chi.  L.  News,  114. 

note;    Emery  v.  Lawrence,  8  Cush.  14.  Recht   v.   Kelly,   82    111.    147, 

(Mass.)    151;   Young  v.  Jones,   180  25  Am.  Rep.  301. 
111.  216,  54  N.  E.  235;  Hax  v.  Acme, 

585 


§    515  OPEEATION    OF    CONTRACTS.  Ch.    17 

And  besides  exemption  laws  do  not  relate  to  the  power  to  con- 
tract in  regard  to  matters  of  general  right.^^ 

The  assignment  of  unearned  wages,  or  salary,  is  controlled 
by  statute  in  some  States.  Thus,  in  Indiana,  the  assignment 
of  future  wages  to  become  due  to  employes,  from  persons, 
companies,  corporations,  or  associations  aifected  by  such  act, 
is  prohibited,  and  any  agreement  to  assign  is  declared  invalid. 
This  statute  has  been  sustained  as  valid  and  constitutional.  So 
an  agreement  made  by  an  employe  to  assign  part  of  his  future 
wages  for  instruction  in  architecture  is  void.  The  assignment 
was  in  the  form  of  an  order  made  by  the  employe  upon  the  em- 
ployer who  accepted  it.^^  If  this  statute  be  constitutional,  then 
why  will  not  a  statute  be  constitutional  controlling  the  salary 
of  an  employe,  compelling  him  to  make  no  contract  in  paying 
over  his  wages  except  as  ordered  by  some  authority  established 
by  the  State  ?  Under  the  same  principle  an  employe  may  be 
compelled  to  deposit  a  part  of  his  wages  as  received  for  the 
purpose  of  accumulation  so  that  he  may  purchase  a  house  of 
a  certain  value.  Such  statute  restricts  the  capacity  of  an  em- 
ploye to  contract  in  a  manner  before  unknown  to  the  law  and 
places  an  employe  in  this  way  in  the  class  of  infants  and  in- 
sane persons.  This  statute  contravenes  the  constitutional  right 
to  contract  in  lawful  vocations,  and  is  neither  based  on  reason 
or  the  police  power  of  the  State. 

When  the  debt  for  which  unearned  wages  are  assigned  as 
security,  is  discharged,  the  securities  springing  into  existence 
subsequent  to  the  discharge  by  reason  of  a  prior  executory  con- 
tract, cannot  be  held  for  the  payment  of  the  discharged  debt." 
Thus,  a  laborer  who  makes  an  assignment  of  his  imearned 
wages,  and  then  goes  into  bankruptcy  and  receives  his  dis- 
charge, makes  the  assignment  of  no  further  validity.  The 
debt  being  paid  and  discharged  by  law,  the  assignment  falls.^* 

15.  Frorer  v.  People,  141  111.  17.  Thomas  v.  Cohen,  7  L.  Rep. 
171,  31  N.  E.  395,  16  L.  R.  A.  492  Q.  B.  527;  Cole  v.  Kernon,  7  L. 
and  note.                                                          Rep.,  Q.  B.  534. 

16.  International  Text  Book  18.  Mallan  v.  Wenhani  (Cir.  Ct. 
Co.  V.  Weissinger,  160  Ind.  349,  65  of  Chicago),  33  Chi.  L.  News,  311, 
N.  E.  521,  98  Am.  St.  Rep.  334.                  209  111.  253. 

586 


Ch.  17 


ASSIGNMENTS. 


}§  516,  517 


§  5i6.  Assignor's  discharge  in  bankruptcy.  —  It  is  crroiio- 
ously  stated  that  the  assig-nment  of  impariiod  wages  in  the 
nature  of  a  mortgage  or  pledge,  and  while  the  debt  is  dis- 
chargeid  in  the  baiikniptej  proceedings  in  so  far  as  it  is  en- 
forceable against  the  debtor  personally,  yet  it  can  be  enforced 
in  rem,  that  is,  against  the  future  wages  which  the  debtor  has 
pledged,  and  hence,  such  wages  are  not  aifected  by  the  dis- 
charge in  bankruptcy ;    but  this  is  not  the  law.^° 


§  517.  Unearned  salary  of  public  officer. — But  there  are  as- 
signments of  salaries  which  are  against  public  policy  and  will 
not  be  upheld  at  law  or  in  equity.  So  an  assignment  by  a 
public  officer  of  the  future  salary  of  his  office  is  void  because  it 
is  against  public  policy.^  And  this  is  the  doctrine  in  England, 
and  an  unearned  salary  of  a  public  officer  cannot  be  assigned.^ 

So  a  municipal  cannot  assign  his  unearned  salary.  The 
public  interests  are  such  that  an  assignment  by  a  public  officer 
of  his  unearned  salary  cannot  be  permitted  or  treated  by  the 
courts  only  as  a  void  agreement.^     And  no  one  can  do  by  indi- 


19.  See  Mallan  v.  Wenham,  209 
111.  253.  Hence  it  would  seem  that 
the  only  practical  way  in  which  such 
debtox-  can  avoid  the  effect  of  his 
assignment,  though  discharged  in 
bankruptcy,  is  to  cease  the  employ- 
ment existing  at  the  time  of  the 
execution  of  the  assignment  and  to 
seek  a  different  engagement  else- 
where. 

20.  In  re  West,  11  Am.  B.  R. 
782,  128  Fed.  Rep.  205. 

1.  Stevenson  v.  Kyle,  42  W.  Va. 
229,  24  S.  E.  886,  57  Ami  St.  Rep. 
854;  Bliss  v.  Lawrence,  58  N.  Y. 
442,  17  Am.  Rep.  273;  National 
Bank  v.  Fink,  86  Tex.  303,  24  S.  W. 
256,  40  Am.  St.  Rep.  833;  State  v. 
Williams,  118  Mo.  146,  23  S.  W. 
1054,  21  L.  R.  A.  827,  40  Am.  St. 
Rep.  358 ;  Schwenk  v.  Wycks.  46  N. 
J.  Eq.  560,  20  A.  259,  9  L.  R.  A. 

587 


221;  Field  v.  Chipley,  79  Ky.  260, 
42  Am.  Rep.  215  and  note;  Bell  v. 
McVicker,  8  Mo.  App.  202;  Com- 
pare State  Bank  v.  Hastings,  15 
Wis.  18. 

2.  Florty  v.  Oldham,  3  Term  R. 
681;  Stone  v.  Lidderdale,  2  Anst. 
233;  Davis  v.  Marlboro,  1  Swanst. 
79;  Lidderdale  v.  Montrose,  4  Term 
R.  248;  Barwick  v.  Read,  1  H.  Bl. 
627;  Arbuckle  v.  Cawhan,  3  Bos.  & 
P.  328;  Wells  v.  Foster,  8  Mees.  & 
Wei.  149;  Hunter  v.  Gardner,  6 
Wilson  &  Shaw,  618;  Hill  v.  Paul, 
8  CI.  &  F.  307;  Palmer  v.  Bates,  2 
Brod.  &  B.  673;  Liverpool  v. 
Wright,  28  L.  J.  Ch.,  N.  S.  871. 

3.  Johnson  v.  Pace,  78  111.  143; 
Merwin  v.  Chicago,  45  111.  133,  92 
Am.  Dec.  204;  Addyston  Pipe  and 
Steel  Co.  v.  Chicago,  170  111.  580, 
48  N.  E.  967,  44  L.  R.  A.  405;  Peo- 


§§    517,  518  OPERATION    OF    CONTKACTS.  Ch.    lY 

rect  means  what  the  law  prohibits.  Thus,  a  power  of  attorney, 
though  irrevocable  in  terms,  does  not  amount  to  an  assignment 
of  a  public  officer's  unearned  or  earned  salary,  when  there  is 
no  assignable  interests  at  the  time  the  power  was  executed.* 
The  doctrine  is  well  settled  that  a  public  officer  cannot  assign 
his  unearned  salary.  And  the  law  prohibits  assignments  of 
such  salary  being  had  by  indirection  or  effected  by  having  the 
official  appoint  an  attorney  authorized  to  receive  the  salary 
and  turn  the  same  over  to  an  assignee. 


ARTICLE  III. 

Interests  That  May  Be  Assigned. 

> 

Section  518.  What  is  Assignable. 

519.  Agreements  of  Personal  Trusts  Involving  Personal  Skill. 

520.  Assignment  of  Expectancies. 

521.  Partial  Assignments  at  Law. 

522.  Partial  Assignments  with  Consent  of  Debtor. 

523.  Partial  Assignment — City  as  Debtor. 

524.  Partial  Assignment  in  Equity. 

525.  Difference  Between  an  Equitable  and  Legal  Assignment. 

526.  When  Partial  Assignments  will  be  Sustained. 

527.  Modification  by  Statute. 

§  518.  What  is  assignable. — Where  an  executory  contract  is 
not  necessarily  personal  in  its  character,  it  may  be  assigned. 
Anything  directly  or  indirectly  involving  a  right  of  property 
it  assignable,^  when  it  is  not  against  public  policy.      The  right 

pie  V.  Omaha,  2  Neb.  169;   Bliss  v.  1.  La  Rue  v.  Groezinger,  84  Cal. 

Lawrence,    58    N.    Y.    442,    17    Am.  281,  24  P.  42,  18  Am.  St.  Rep.  179; 

Rep.    273;    Wallace  v.    Lawyer,   54  Mulhall  v.  Quinn,  1  Gray   (Mass.), 

Ind.   501,  23  Am.  Rep.   661;    High-  105,  61  Am.  Dec.  414;  Cook  v.  Bell, 

tower   V.    Slayton,    54   Ga.    108,    21  18  Mich.  387;   Harboard  v.  Cooper, 

Am.  Rep.  273;    Schloss  v.  Hewlett,  43  Minn.  466,  45  N.  W.  860;   Dev- 

81  Ala.  266,  1  So.  263.  lin  v.  New  York,  63  N.  Y.  8 ;  Grant 

4.  Lehigh    Valley    R.    R.    Co.    v.  v.   Ludlow,   8   Ohio   St.   1;    Gray  v. 

Woodring,    116    Pa.    St.    513,    9    A.  Garrison,    9    Cal.    325;    Dayton    v. 

58.  Fargo,  45  Mich.  153,  7  N.  758. 

588 


Oh.    17  ASSIGNMENTS.  §    518 

assignable  must  have  at  least  a  potential  existence  at  the  time 
of  tlie  assignment.^  Actual  existence  is  not  unnecessary.  If 
the  thing  rests  in  possibilitj  only  at  the  time  of  the  assign- 
ment, the  assignment  is  valid,  though  the  contract  may  never 
be  performed.  Expectancies,  as  well  as  existing  rights  of 
action,  may  be  assigned,  and  the  rights  of  the  assignee  will  be 
protected  and  enforced  at  law.^  An  assignment  may  include 
all  contingent  and  incidental  benefits  or  results  of  an  execu- 
tory contract,  as  well  as  all  direct  fruits  and  earnings  under 
it,  and  thus  entitle  the  assignee  to  the  damages  resulting  from 
a  violation  of  its  terms.  The  right  of  action  for  a  breach  of 
the  contract,  resulting  in  precuniary  loss  to  the  contractor, 
would  survive  to  the  personal  representatives  of  the  aggrieved 
party,  and  that  is  one  test  of  the  assignability  of  contracts  and 
choses  in  action.* 

A  perfected  claim  to  any  thing,  whether  money  or  goods, 
may  be  assigned  so  as  to  vest  in  the  assignee  the  equitable  in- 
terest, and  in  some  of  the  States  the  legal  interest.^ 

Commissions  on  renewal  premiums  in  insurance  to  accrue 
annually  for  a  given  period  in  the  future,  is  assignable  by  the 
agent,^  so  a  lessor  can  assign  future  rent  under  an  existing 
lease,'^  though  it  is  not  probable  he  could  assigii  rent  under  a 
lease  not  yet  made ;  and  so  a  man  may  assign  money  under  an 
insurance  policy  already  issued  before  any    loss,    though    he 

2.  Metcalf  v.  Kincaid,  87  Iowa.,  of  App.  Dec.  301;  Devlin  v.  New 
443,  54  N.  W.  867,  48  Am.  St.  Rep.        York,  63  N.  Y.  8. 

400;  Thallheinier  v.  Biinckerhoff.  3  4.  Byxbie    v.    Wood,    24    N.    Y. 

Cow.   (N.  Y.)   623,  15  Am.  Dec.  308  607;   McKee  v.  Judd,  2  Kern.    (N. 

and  note;  Skipper  V.  Stokes,  42  Ala.  Y.)     622;     Zabriskie    v.    Smith,    3 

255,    94    Am.    Dec.    646    and   note;  Kern.    (N.  Y.)   322. 

Kassiev.  Congregation,  35  Cal.  378;  5.  Gray  v.  Garrison,  9  Cal.  325; 

Moody  V.  Wright,  13  Met.   (Mass.)  Pier  v.  George,  86  JST.  Y.  613;  Bull 

17,    46    Am.    Dec.    706    and    note;  v.  Faulkner,  2  De  G.  &  S.  772. 

Needles  v.  Needles,  7  Ohio  St.  432,  6.  Knevals   v.    Bhiuvelt,    82    Me. 

70  Am.  Dec.  85  and  note.  458,  19  A.  818. 

3.  Field  v.  Mayor,  2  Seld.  (N.  7.  Demorest  v.  Willard,  8  Cow. 
Y.)   179;  Hall  v.  Buffalo,  2  Abb.  Ct.  (N.  Y.)    206. 


589 


§§    518,  519  OPEEATION    OF    CONTRACTS. 


Oh.  17 


could  not  assign  money  before  the  issuance  of  the  policy.^  And 
so  a  contract  to  sell  all  the  ji^apes  of  a  certain  standard  which 
the  contractor  may  raise  upon  a  certain  vineyard  during  a  cer- 
tain period  is  assignable  by  the  party  selling.^ 

If  the  assignment  is  the  mere  possibility  of  a  subsequent 
acquisition  of  property,  which  is  vague  and  uncertain,  it  will 
not  be  sustained  as  a  valid  assignment/** 

"Services"  rendered  under  a  contract  for  the  erection  of  a 
building  includes  claims  for  money  due  for  expenditures 
under  the  contract  as  well  as  for  labor  performed  thereunder, 
and  goes  with  the  assignment  of  the  contract.^ 


§  519.  Agreements  of  personal  trust  involving  personal 
skill. — Every  kind  of  a  contract  is  not  assignable.  Contracts 
for  personal  services,  or  contracts  otherwise  involving  personal 
credit,  trust  or  confidence  cannot  be  assigned.-^     Thus  a  master 


8.  Bergson  v.  Ins.  Co.,  38  Cal. 
541. 

9.  La  Rue  v.  Groezinger,  84  Cal. 
281,  24  A.  42,  18  Am.  St.  Rep.  179. 

10.  Mulhall    V.    Quinn,    1    Gray 
(Mass.),    105,    61    Am.    Dec.    414 
Jermyn  v.  Moffitt,  75  Pa.  St.  402 
Ruple  V.  Bindley,  91   Pa.  St.  296 
Lehigh  Valley  R.  R.  Co.  v.  Wood 
ring,    116    Pa.    St.    513,    9    A.    58 
Runnells  v.  Bosquest,  60  N.  H.  38 
Metcalf   V.   Kincaid,   87   Iowa,   443 
54  N.  W.  867,  43  Am.  St.  Rep.  391 
Morrill   v.   Noyes,   56   Me.   458,    96 
Am.   Dec.   486.      Compare   Edwards 
V.  Peterson,  80  Me.  367,  14  A.  936, 
6  Am.  St.  Rep.  207. 

11.  Tracy  v.  Waters,  162  Mass. 
562,  39  N.  E.  190.  See,  also.  Union 
Pac.  R.  R.  Co.  V.  Bank,  42  Neb. 
469,  60  N.  W.  866;  Hooper  v.  Van 
Husen,  105  Mich.  592,  63  N.  W. 
522. 

1.  Robson  V.  Drummond,  2  Barn. 
&  Ad.  303;  Bethlehem  v.  Annis,  40 


N.  H.  34,  77  Am.  Dec.  700;  Joslyn 
V.  Parlin,  54  Vt.  670;  Lansden  v. 
McCarthy,  45  Mo.  106;  Munsell  v. 
Temple,  3  Gil.  (111.)  93;  Schultz 
V.  Johnson,  5  B.  Mon.  (Ky.)  497; 
Wheeler  v.  Walton,  64  Fed.  Rep. 
664;  Boykin  v.  Campbell,  9  Mo. 
App.  495;  Redheffer  v.  Leathe,  15 
Mo.  App.  12;  Boston  Ice  Co.  v. 
Potter,  123  Mass.  28,  25  Am.  Rep. 
9 ;  Hardy  Implement  Co.  v.  Iron 
Works,  129  Mo.  222,  31  S.  W.  599; 
Humble  v.  Hunter,  12  Q.  B.  311; 
Boulton  V.  Jones,  2  Hurl.  &  N.  564; 
Devlin  v.  New  York,  63  N.  Y.  8; 
Taylor  v.  Palmer,  31  Cal.  241; 
British  Wagon  Co.  v.  Lea,  5  Q.  B. 
Div.  149 ;  Arkansas  Valley  Smelting 
Co.  V.  Min.  Co.,  127  U.  S.  379,  8  S. 
Ct.  1308;  Rappleye  v.  Seeder  Co., 
79  Iowa,  220,  44  N.  W.  363,  7  L. 
R.  A.  139;  Sloan  v.  Williams,  138 
111.  43,  27  N.  E.  531,  12  L.  R.  A. 
496  and  note ;  Chapin  v.  Longworth, 
31  Ohio  St.  421;  Grieswold  v.  Rail- 


590 


Ch.    17  ASSIGNMENTS.  §    519 

cannot  assipm  over  his  apprentice.^  So  a  contract  by  a  pub- 
lisher with  an  author  to  publish  a  work  is  not  assi^able  by  the 
publisher  without  the  author's  consent,  because  of  the  personal 
trust  placed  in  the  publisher  by  the  author;  that  the  contract 
was  made  in  reference  to  the  character  and  facilities  of  the 
contracting  firm  as  a  publishing  house,  and  was  in  the  nature 
of  a  partnership  in  so  far  as  it  provided  for  a  division  of  the 
profits  of  the  work  to  be  published.^  So  a  contract  to  deliver 
meat  to  a  hotel,  to  be  paid  for  at  the  end  of  each  month,  cannot 
be  assigned  by  the  hotel-keeper,  because  the  pecuniary  credit 
and  standing  of  the  hotel-keeper  constituted  an  important  in- 
ducement to  the  contract.^  So  a  contract  to  sell  ore  to  a  smelt- 
ing company,  the  price  of  which  is  to  be  adjusted  and  paid  by 
the  mutual  acts  of  the  parties  after  delivery,  is  not  assignable 
by  the  smelting  company;  because  during  the  time  that  must 
elapse  between  the  delivery  of  the  ore  and  the  ascertainment 
and  payment  of  the  price,  the  party  furnishing  the  ore  had  no 
security  for  its  payment,  except  in  the  character  and  solvency 
of  the  smelting  company.^  And  there  may  be  extraneous  cir- 
cumstances showing  that  the  party's  intention  was  not  to  deal 
with  the  assignee.^ 

Although  the  language  may  not  show  an  intention  that  the 
contract  should  not  be  assigned,  yet  the  nature  of  the  case  may 
be  such  that  performance  by  another  would  be  an  essentially 
different  thing  from  that  contracted  for.  Thus,  a  picture  by 
an  artist  is  an  essentially  different  thing  from  a  picture  on  the 
same  subject  by  another  artist ;  and  so  of  a  book  composed  by 

road  Co.,  18  Mo.  App.  52;   Daly  v.  3.  Stevens   v.    Benning,   6   De   G. 
Stetson,   54  N.  Y.   Super.   Ct.   202;  SI.  &  G.  223,  1  Kay  &  J.  168;  Gib- 
Davenport    V.    Gentry,    9    B.    Men.  son  v.  Carruthers,  8  Mees.  &  Wei. 
(Ky.)    427:   Burger  v.  Rice.  3  Ind.  321,  343. 
125.  4.  Lansden  v.  McCarthy,  45  Mo. 

2.  Caster  v.   Aides,   1    Salk.   68;  106. 

Davis    V.    Coburn,    8    Mass.    299;  5.  Arkansas  Valley  Smelting  Co. 

Nickerson    v.    Howard,     19    Johns.  v.  Belden  Min.  Co.,  127  U.  S.  388, 

(N.   Y.)    113;    Stringfield   v.   Heis-  8  S.  Ct.  1308. 

kell,  2  Yerg.    (Tenn.)    546;    Handy  6.  Boston  Ice  Co.  v.  Potter,   123 

V.  Brown,  1  Cranch,  C.  C.  610.  Mass.  28,  30,  25  Am.  Rep.  9. 

591 


§§    519,  520  OPERATION    OF    CONTBACTS.  Ch.    17 

an  author,  or  any  other  act  or  thing  where  the  skill,  credit,  or 
other  personal  quality  or  circumstance  of  the  party  is  a  dis- 
tinctive characteristic  of  the  thing  contracted  for,  or  a  material 
inducement  to  the  contract.  Under  this  general  head,  many 
cases  have  already  been  cited  to  establish  this  self-evident 
doctrine. 

While  a  contract  right  to  render  personal  service  cannot  be 
assigned  without  consent  of  the  person  to  whom  the  services  are 
due,  the  right  to  receive  pay  for  such  services  when  rendered 
is  assignable,  in  the  absence  of  statute  or  stipulation  to  the  con- 
trary,^ even  when  the  fund  has  only  a  potential  existence.^ 

§  520.  Assignment  of  expectancies. — It  is  a  general  rule 
that  an  assignment  at  law  will  not  be  sustained,  unless  the  sub- 
ject-matter has  an  actual  or  potential  existence  when  the  as- 
signment is  made.  In  equity  the  rule  is  different;  so  an  ex- 
pectancy of  an  heir  in  an  ancestor's  estate  may  become  subject 
of  contract,  and  maj  be  assigned  in  equity.  Courts  of  equity 
will  uphold  such  an  agreement  of  an  heir-apparent,  when  it  is 
fairly  made  for  an  adequate  consideration.  If  no  unjust  ad- 
vantage is  taken  of  the  indiscretion  or  necessities  of  the  heir, 
and  if  the  agreement  is  not  unconscionable  and  is  not  obtained 
by  fraud  or  oppression,  it  may  be  enforced  in  equity  after  the 
death  of  the  ancestor,^  provided  such  conveyance  contains  cove- 
nants of  warranty  or  recitals,  or  the  grantor  has  acted  so  as  to 

7.  Ryan  v.  Douglas  County,  47  Wyatt,  54  Kans.  523,  38  P.  792,  33 
Neb.  9,  66  N.  W.  30;  Perkins  v.  L.  R.  A.  278;  Patterson  v.  Caldwell, 
Butler  County,  44  Neb.  110,  &2  N.  124  Pa.  St.  455,  16  A.  496,  10  Am. 
W.  308,  3  Pom.  Eq.  Jur.  1280.  St.   Rep.   598;    Kuhn's   Estate,    163 

8.  Brill  V.  Tuttle,  81  N.  Y.  454,  Pa.  St.  438,  30  A.  215;  Kinyon  v. 
37  Am.  Rep.  515;  Leahy  v.  Dug-  Kinyon,  72  Hun,  452,  25  N.  Y.  S. 
dale,  27  Mo.  437;  Devlin  v.  New  225;  Bacon  v.  Bonham,  33  N.  J. 
York,  63  N.  Y.  8;  Cutts  v.  Perkins,  Eq.  614;  In  re  Garcelon,  104  Cal. 
12  Mass.  206;  Hawley  v.  Bristol,  570,  38  P.  414,  32  L.  R.  A.  595  and 
39  Conn.  26;  Brown  v.  Dunji,  50  note,  34  Am.  St.  Rep.  134.  See, 
N.  J.  L.  Ill,  11  A.  149.  also,  Kershaw  v.  Kershaw,   102  111. 

9.  Steele  v.  Fierson,  85  Tenn.  307;  Crum  v.  Sawyer,  132  111.  443, 
430,    3    S.    W.    649;    Clendening   v.  24    N.   E.    956.      Compare   Alves   v. 

592 


Ch.    17  ASSIGNMENTS.  §§    520, 521 

give  rise  to  equitable  estoppel  ;^''  and  it  is  held  that  the  ancestor 
must  acquiesce  at  such  conveyance.^^  If  the  ancestor  makes  a 
will  and  the  heir  never  takes  under  it,  then  hib  conveyance  is 
void.^ 

§  521.  Partial  assignment  at  law. — It  is  well  settled  that  a 
creditor  cannot  without  the  consent  of  the  debtor,  split  up  an 
entire  demand  into  distinct  parts,  and  maintain  separate  actions 
at  law  upon  each.  In  such  case  a  recovery  in  one  action  bars 
the  others.^  The  debtor's  liability  usually  depends  upon  the 
entire  contract,  and  if  the  creditor  could,  without  the  debtor's 
consent,  split  up  a  claim  at  all,  and  assign  any  portion  of  it, 
he  could  do  so  indefinitely,  and  thus  subject  the  debtor  to  many 
actions  involving  great  outlay  in  costs  and  disbursements,  not 
contemplated  by  the  contract,  which  was  limited  to  a  single 
liability  upon  an  entire  demand.^ 

Partial  assignments  the  common  law  courts  have  never  recog- 
nized, because  an  entire  debt  cannot  be  divided  into  parts  by 
the  creditor  without  the  consent  of  the  debtor.  The  rule  has 
been  established,  partially  at  least,  on  the  ground  of  the  entirety 
of  the  contract,  because  a  creditor  cannot  sue  his  debtor  for  a 
part  of  an  entire  debt ;  and,  if  he  brings  such  an  action  and  re- 
covers judgment,  the  judgment  is  a  bar  to  an  action  to  recover 
the  remaining  part.  There  must  be  distinct  promises  to  main- 
tain more  than  one  action.^ 

At  law  a  partial  assignment  may  be  good  between  the  parties, 

Schlesinger,    81    Ky.    290;     In    re  and  note;  56  Am.  St.  Rep.  335  and 

Fritz's  Estate,  160  Pa.  St.   150,  28  note. 

A.  642.  1.  Smith  v.  Jones,  15  Johns.   (N. 

10.  Hart  V.  Gregg,  32  Oliio  St.  Y.)  229;  Willard  v.  Sperry,  16 
502.  Johns.     (N.    Y.)     121;    Larziou    v. 

11.  McClure  v.  Raben,  125  Ind.  Piochi,  8  Cal.  536;  Herriter  v.  Por- 
139,  25  N.  E.   179,  9  L.  R.  A.  477;  ter,  23  Cal.  385. 

Pingrey   on   Real   Prop.   1212.  2.  Mandville  v.  Welch,  5  Wheat. 

12.  Ebey  v.  Adams,  135  111.  80,        (U.  S.)    277. 

25  N.  E.  1013,  10  L.  R.  A.  1G2.    See,  3.  Warren   v.    Comings,   6   Cush. 

also,   McCall   v.    Hampton,   98    Ky.        (Mass.)    103. 
166,  32  S.  W.  406,  33  L.  R.  A.  266 

593 


§§    521,  522  OPERATION    OF    CONTRACTS.  Oh.    17 

and,  if  the  assignor  collects  the  money,  he  wonld  in  such  case 
hold  it  as  trustee  of  the  assignee.  But  the  assignee  has  no  legal 
remedy  against  the  dehtor  who  does  not  become  a  party  to  the 
agreement.  The  law  permits  the  transfer  of  an  entire  cause  of 
action  from  one  person  to  another,  because  in  such  case  the  only 
inconvenience  is  the  substitution  of  one  creditor  for  another. 
But  if  assigned  in  parts,  the  debtor  has  to  deal  with  a  plurality 
of  creditors.  If  his  liability  can  be  legally  divided  at  all  with- 
out his  consent,  it  can  be  divided  and  subdivided  indefinitely. 
He  would  have  to  ascertain  the  relative  shares  and  rights  of  the 
substituted  creditors.  He  would  have,  instead  of  a  single  con- 
tract, a  number  of  contracts  to  perform.  A  partial  assignment 
would  impose  upon  him  burdens  which  his  contract  does  not 
compel  him  to  bear.^ 

§  522.  Partial  assignment  with  consent  of  debtor.  —  If, 

however,  the  assignment  of  a  part  of  a  claim  is  made  with  the 
consent  of  the  debtor,  the  assignee  may  bring  his  action  upon  it 
without  making  other  holders  of  the  demand  parties  to  the 
8uit.^  The  right  to  sue  upon  the  debtor's  assent  to  a  partial  as- 
signment of  a  demand  rests  upon  the  theory  that  the  assign- 
ment of  the  property  in  the  sum  transferred  to  the  assignee  is 

4.  Robbing  v.  Bacon,  3  Me.  346;  (Mass.)     382;    Phillips    v.    Edsall, 

Gibson  v.  Cooke,  20  Pick.    (Mass.)  127  111.  535,  20  N.  E.  801;  Warren 

15,   32   Am.   Dec.    194;    Tierman   v.  v.   Bank,   149  111.   9,   38  N.  E.   122, 

Jackson,  5  Pet.   (U.  S.)   580;  James  25  L.  R.  A.  740;  Geist's  Appeal,  104 

V.  Newton,  142  Mass.  366,  8  N.  E.  Pa.  St.  351;   Williams  v.  Webb,  32 

122,    56   Am.   Rep.    692;    Carter   v.  Iowa,   577;    Little   v.    Portland,   26 

Nichols,  58  Vt.  553,  5  A.  197;  Na-  Greg.    235,    37    P.    911;    Insurance 

tional   Exch.   Bank   v.   McLoon,   73  Co.  v.  Bullene,  51  Kans.  764,  33  P. 

Me.  498,  40  Am.  Rep.  388 ;  Getchell  467 ;  Welch  v.  Mayer,  4  Colo.  App. 

V.  Maney,  69  Me.  442;  Knowlton  v.  440,  36  P.  613;  Snelden  v.  Harmes, 

Cooley,    102    Mass.    233;    Miller   v.  5  Colo.  App.  477,  39  P.  68;  Beards- 

Bledsoe,     1     Scam.     (111.)     530,    32  ley  v.  Morguer,  73  Mo.  22. 

Am.  Dec.  37;  Philadelphia's  Appeal,  5.  Grain  v.  Aldrich,  38  Cal.  514, 

86   Pa.   St.   179;    Grain  v.   Aldrich,  n9   Am.   Dec.   422;    National   Exch. 

38  Cal.  514,  99  Am.  Dec.  423;  Mil-  Bank   v.   McLoon,    73    Me.    498,    40 

roy   V.    Iron   Co.,   43    Mich.    231,    5  Am.   Rep.   388;    Little  v.   Portland, 

N".  287;  Tripp  v.  Brownell,  12  Cush.  26  Oreg.  235,  37  P.  911. 
!. 

594 


Ch.   17  ASSIGNMENTS.  §§  522-524 

a  good  consideration  for  the  debtor's  promise  to  pay  the  as- 
signee, and  by  this  promise  the  indebtedness  to  the  assignor  is 
•pro  tanto  discharged.^ 

§  523.  Partial  assignment — City  as  debtor — Consent. — The 
same  rule  applies  to  a  municipal  corporation.  The  contract 
of  a  city  in  accepting  and  agTecing  to  pay  a  part  of  a  demand 
against  it  to  an  assignee  of  its  creditor,  will,  in  the  absence  of 
any  statute  to  the  contrary,  be  treated  as  is  a  contract  of  a  pri- 
vate person  and  the  city  will  be  liable.^  And  so  when  a  city 
splits  up  a  demand  of  a  contractor  against  it  by  executing  war- 
rants therefor  in  different  amounts,  it  cannot  escape  liability 
on  one  of  the  warrants  on  the  ground  that  the  contract  was 
entire,  and  that  an  action  had  previously  been  brought  on 
another  warrant.^  And  by  drawing  such  warrants  the  city 
consents  to  the  assignment  by  the  contractor  of  such  parts  of 
his  claim,  so  as  to  entitle  his  assignees  thereof  to  sue  separately 
therefor.^ 

But  in  Pennsylvania  the  court  refused  to  apply  this  rule  to 
a  debt  due  from  a  municipal  corporation,  on  the  ground  that 
the  policy  of  the  law  is  against  permitting  individuals  by  their 
private  contracts  to  embarrass  the  principal  officers  of  a  muni- 
cipality.* But  there  is  no  ground  for  such  a  decision  and  is 
against  the  weight  of  authority. 

§  524.  Partial  assignment  in  equity. — ^It  is  established  in 
equity  that  a  partial  assignment  may  be  sustained.  In  order 
that  a  court  will  take  jurisdiction  there  must  be  a  special  fund, 
sum  of  money,  or  debt  actually  existing  or  to  become  so  in 
futuro,  upon  which  an  assigiiment  may  operate,  and  the  agree- 
ment, direction  for  payment,  or  order  must  be  in  effect  an  as- 

6.  James   v.    Newton,    142   Mass.  2.  Little    v.    Portland,    26    Oreg. 

366,  8  N.  E.  122,  56  Am.  Rep.  692.  235,  37  P.  911. 

See,  also,  Taylor  v.  Lj-nch,  5  Gray  3.  Little    v.    Portland,    26    Oreg. 
(Mass.),   49;    Lannan  v.    Smith,   7  235,    37    P.   911;    Seattle   v.    Liber- 
Gray      (Mass.),     150;      Bourne     v.  man,  9  Wash.  276,  37  P.  433. 
Cobat,  3  Met.    (Mass.)    305.  4.  Philadelphia's  Appeal.   86  Pa. 

1.  James   v.   Ne-\vton,    142    Mass.  St.  179. 
366,  8  N.  E.  122,  56  Am.  Rep.  092. 

595 


§§    524,  525  OPERATION    OF    CONTEACTS.  Ch.    lY 

signmeut  of  that  fund,  or  of  some  definite  portion  of  it.^  And 
an  assignee  of  a  part  of  a  debt  may  enforce,  in  equity,  its  pay- 
ment and  if  it  be  a  fund  be  may  enforce  its  payment  to  him, 
with  notice  of  the  assignment  to  the  holder  who  has  no  superior 
claim  to  it.^  While  a  part  of  a  debt  or  chose  in  action  is  not 
assignable  at  law,  it  may  be  assigned  in  equity;  and  in  such 
case  a  trust  will  be  created  in  favor  of  an  equitable  assignment 
of  the  fund,  and  will  constitute  an  equitable  lien  upon  it.^ 

§  525.  Difference  between  an  equitable  and  legal  assign- 
ment.— The  equitable  modification  of  the  common  law  rule 
was  an  outgrowth  of  a  commercial  era,  made  necessary  to  adapt 
to  the  condition  of  a  trading  people.  In  many  cases,  di- 
rectly or  indirectly,  do  circumstances  create  assignments  of 
parts  of  funds,  in  dealing  through  servants,  tenants,  consignees, 
bankers  and  other  agencies. 

An  assignment  to  be  valid  at  law  must  be  of  a  debt  or  fund 
in  existence  at  the  time,  and  of  the  whole  thereof,  or  of  a  part 
of  a  debt  or  fund  then  in  existence,  and  the  assignment  or  order 
transferring  the  fund  must  be  accepted  by  the  debtor  or  person 
holding  the  fund.     In  an  equitable  assignment  of  a  specific 

1.  Wright  V.  Ellison,  1  Wall.  (U.  37  N.  E.  312;  Sykes  v.  Bank,  2  S. 
S.)    16;  Peugh  v.  Porter,  112  U.  S.        Dak.  242,  49  N.  W.  1058. 

737,  5  S.  Ct.  622;   National  Exch.  3.  Phillips    v.    Edsall,    127    111. 

Bank   v.   McLoon,    73   Me.   498,   40  535,  20  N.  E.  801 ;  Warren  v.  Bank, 

Am.  Rep.  388 ;  Grain  v.  Aldrich,  38  149  111.  9,  38  N.  E.  122,  25  L.  R.  A. 

Cal.  514,  99  Am.  Dec.  423;   Parker  746;     Kingsbury     v.     Burrill,     151 

V.  Syracuse,  31  N.  Y.  376;   Brill  v.  Mass.   199,  24  N.  E.   36;    Bower  v. 

Tuttle,  81  N.  Y.  454,  37  Am.  Rep.  Hadden,  30  N.  J.  Eq.   171;   Ether- 

514;  Risley  v.  Bank,  83  N.  Y.  318,  idge    v.    Vernoy,    74    N.    Car.    800; 

38  Am.  Rep.  421  and  note;  Fordyce  Grain   v.   Aldrich,   38   Cal.   514,   99 

V.  Nelson,   91   Ind.   147;    County  v.  Am.  Dec.  423;    County  v.  Hinkley, 

Hinkley,  62  Iowa,  627,   17  N.  915;  62  Iowa,  637,  17  N.  915;  James  v. 

James  v.  Newton,  142  Mass.  366,  8  Newton,  142  Mass.  366,  8  N.  E.  122, 

N.  E.   122,  56  Am.  Rep.  692;   Dan-  56   Am.   Rep.   692;    National   E.xch. 

iels  V.  Weinhard,  53  Ga.  359 ;  Canty  Bank   v.    McLoon,    73   Me.    498,    40 

V.   Latterner,   31   Minn.   239,   17   N.  Am.    Rep.    388;    Bank    v.    Kimber- 

385;    Bank  v.   Kimberlands,   16   W.  lands,    16    W.    Va.    555.      Compare 

Va.  555.  Burnett   v.   Crandall,   63   Mo.   410; 

2.  Savage  v.  Gregg,  150  111.  161,  Gardner  v.  Smith,  5  Heisk.   (Tenn.) 

256. 

596 


Ch.    17  ASSIGNMENTS.  §§    525,  526 

debt  or  fund,  it  is  not  an  essential  element  that  the  debt  should 
have  blcen  earned  or  the  fund  be  in  esse  at  the  time  of  the  as- 
signment or  order  transferring  the  debt  or  fund,  or  that  the 
assignment  or  order  transferring  the  specific  debt  or  fund,  or 
a  part  thereof,  should  be  accepted  by  the  debtor  or  holder  of  the 
specific  fund.^ 

When  the  subject  of  the  assignment  is  not  in  esse  and  may 
never  be,  and  cannot  be  reached  by  garnishment,  then  upon 
such  assignment,  no  action  at  law  can  be  maintained.  To  make 
an  assignment  valid  at  law,  the  thing  assigned  must  have  an 
actual  existence  at  the  date  of  the  assignment.^ 

§  526.  When  partial  assignment  will  be  sustained. — Partial 
assignments  will  be  sustained  in  equity,  in  all  cases  where  it  can 
be  done  without  detriment  to  the  debtor  or  fund-holder,  when- 
ever equitable  and  just  results  may  be  accomplished.  This  doc- 
trine is  upheld  by  the  courts.^  So  in  equity,  an  order  given  by 
a  debtor  to  his  creditor  upon  a  third  person  having  funds  of  the 
debtor,  to  pay  the  creditor  out  of  such  fund,  is  a  binding  equit- 
able assignment  of  so  much  of  the  funds.'*  It  is  a  credit  on.  the 
fund,  and  must  amount  to  an  assignment  of  so  much  of  the 
debt;  and  though  the  law  does  not  admit  an  assignment  of  a 
chose  in  action,  a  court  of  equity  will,  and  any  words  will  do, 
no  particular  words  being  necessary  thereto.^ 

The  modern  decisions  fully  protect  the  equitable  rights  of 
the  assignee  of  choses  in  action.^ 

1.  Sykes  v.  Bank,  2  S.  Dak.  242,  431 ;  Rodick  v.  Gandell,  1  De  G.  M. 
49  N.  W.  1058.  &  G.  7G3,  12  Beav.  325;  Addison  v. 

2.  Grain  v.  Aldrich,  38  Cal.  514,  Cox.  L.  R.  8  Ch.  76;  Brice  v.  Ban- 
99  Am.  Dec.  423.  nister,  L.  R.  3  Q.  B.  569;   Ranken 

3.  Row  V.  Dawson,  1  Ves.  Sr.  v.  Alfaro,  L.  R.  5  Ch.  D.  786;  Ex 
431;  Yeates  v.  Groves,  1  Ves.  Jr.  parte  Hall,  L.  R.  10  Ch.  D.  615; 
481;  Ex  parte  South,  3  Swanst.  Hopkinson  v.  Forster,  L.  R.  19  Eq. 
392;  Fitzgerald  v.  Stewart,  2  Sim.  74;  Thompson  v.  Simpson,  L.  R.  5 
33,  2  Russ.  &  My.  457;  Lett  v.  Mor-  Ch.  659;  Brown  v.  Bateman,  L.  R. 
ris,  4  Sim.  607 ;  Watson  v.  Welling-  2  C.  P.  272 ;  Field  v.  Magaw,  L.  R. 
ton,  1  Russ.  &  My.  602.  4  C.  P.  660;   Tibbetts  v.  George,  5 

4.  Burn  v.  Carvalho,  4  Mylne  &  Ad.  &  El.  107. 

Cr.  690.  6.  Morton  v.  Naylor,  1  Hill    (N. 

5.  Row    V.    Dawson,    1    Ves.    Sr.        Y.),  583;   Bradley  v.  Root,  5  Paige 

597 


§§    526,  527  OPEEATION    OF    CONTRACTS.  Ch.    17 

So  a  holder  of  a  fire  insurance  policy,  after  a  loss,  may  as- 
sign in  writing  an  interest  in  tlie  same  to  a  creditor  to  the  ex- 
tent of  the  creditor's  debt;  this  will  prevent  an  attachment  of 
this  fund  as  the  property  of  the  assig-nor.^  Equitable  assign- 
ments of  part  of  the  chose  in  action  is  recognized  by  all  the 
courts,  where  equity  and  good  conscience  require  it.^ 

§  527.  Modification  by  statute. — Many  of  the  States  have 
passed  laws  allowing  an  assignee  of  a  chose  of  action  to  prose- 
cute the  claim  in  his  own  name.  This  is  now  the  law  of  Eng- 
land.i 

In  many  States  a  new  system  of  pleading  is  adopted,  and 
equity  and  law  are  administered  in  the  same  court  by  the  same 
judge.  So  the  distinction  between  actions  at  law  and  suits  in 
equity,  and  the  forms  of  all  such  actions  and  suits,  heretofore 
existing,  are  abolished.  But  law  and  equity  as  two  distinct 
systems,  still  remain.  It  is  the  distinction  between  the  forms 
of  actions  at  law  and  suits  in  equity  only  that  has  been  abol- 
ished. And  where  the  facts  stated  and  the  subject  matter  show 
that  the  controversy  is  equitable,  the  suit  must  be  tried  in  equity 
and  not  at  law.^ 

(N.   Y.),   632;    Marshall   v.   Meech,  H.   298;    Public   Schools   v.   Heath, 

51   N.   Y.    140,    10   Am.    Rep.    572;  15  N.  J.  Eq.  22;  Claffin  v.  Kimball, 

Alger  V.  Scott,  54  N.  Y.  14;   Field  52  Vt.  7;   Christmas  v.  Russell,  14 

V.  New  York,  2  Seld.   (N.  Y.)    179;  Wall.  (U.  S.)  G9;  Trist  v.  Child,  21 

Risley  v.   Bank,   83   N.   Y.   318,   38  Wall.    (U.  S.)    441;  James  v.  New- 

Am.  Rep.  421  and  note;  Ether idge  V.  ton,    142   Mass.   366,   56   Am.    Rep. 

Vernoy,  74  N.  Car.  809;   Philadel-  692,  8  N.  E.   122;   National  Exeh. 

phia's  Appeal,  86  Pa.  St.  179.  Bank   v.   McLoon,    73   Me.    498,    40 

7.  Daniels  v.  Meinhard,  53  Ga.  Am.  Rep.  388;  Canty  v.  Latterner, 
359.  31  Minn.  239,  17  N.  385;   Bank  v. 

8.  Stanberry  v.  Smythe,  13  Ohio  Kimberlands,  16  W.  Va.  555; 
St.  495;  Dowell  v.  Cardwell,  4  County  v.  Hinkley,  62  loAva.  637, 
Saw.  C.  C.  217;  Lapping  v.  Duffy,  17  N.  915.  Compare  Burnett  v. 
47  Ind.  51;  Whitney  v.  Cowan,  55  Crandall,  63  Mo.  410;  Gardner  v. 
Miss.  626;  Warren  v.  Bank,  149  111.  Smith,  5  Heisk.    (Tenn.)    25fi. 

9,  38  N.  E.   122,  25  L.  R.  A.  746;  1.  36   &   37   Vict.   c.   66,   sec.   25, 

Little  V.  Portland,  26  Oreg.  235,  37  subsec.  6. 

P.   911;   Conway  v.  Cutting,  51  N.  2.  Sykes  v.  Bank,  2  S.  }')ak.  242, 

H.  407;   Christie  v.   Sawyer,  44  N.  49  N.  W.  1058. 

598 


CHAPTER  XVIII. 

Impairment    of    the    Obligation    of    Contracts    and    the    Right    to 

Contract. 


ARTICLE  I. 
The  Contract. 

Section  528.   Reduction  of  Periods  of  Limitations. 

529.  Gold  Clause. 

530.  Salaries  of  Public  Officers. 

531.  Decisions  Under  Prior  Statutes. 

532.  Retrospective  Laws. 

533.  Conflict  of  Laws. 

§  528.  Reduction  of  periods  of  limitations. — It  is  well  set- 
tled that  a  reasonable  limitation  of  the  time  within  which  a 
material  contractual  obligation  may  be  enforced  by  suit  does 
not  impair  the  obligation  of  the  contract  in  the  sense  of  the  con- 
stitutional prohibition ;  hence,  a  limitation  to  one  year,  or  to  six 
months,  is  not  unreasonable,  and  does  not  impair  the  obligation 
of  the  contract  nor  deprive  the  obligee  of  an  adequate  remedy.^ 
Hence,  the  fact  that  prior  to  the  passage  of  an  act,  there  was  no 
statutory  limitation  of  the  time  within  which  a  deed  must  be 
made  by  the  tax  collector,  after  the  period  allowed  for  redemp- 
tion, does  not  render  the  last  act  unconstitutional  as  impairing 
the  obligation  of  the  contract  of  sale,  provided  the  last  act  is  a 
reasonable  limitation  of  the  time  within  which  a  remedy  may  be 
allowed  for  the  enforcement  of  the  obligation  after  the  passage 
of  the  act.^     Of  course,  this  applies  where  no  limitation  existed 

1.  Terry   v.   Anderson,   95   U.    S.  S.  Ct.  834;  Wheeler  v.  Jackson,  137 

628;  Tuttle  v.  Block,  104  CaL  443,  U.   S.   245,   11   S.   Ct.   76;    Korn   v. 

38  P.  109 ;  Herekholf ,  etc.  Lum.  Co.  Browne,  64  Pa.  St.  55. 
V.  Olmstead,  85  Cal.  80,  24  P.  648 ;  2.  Tuttle  v.  Block,  104  Cal.  443, 

Vance  v.  Vance,  108     U.  S.  514,  2  38  P.   109.     See.  also,  McGahey  v. 

599 


§§    528,  529  OPEEATION    OF    CONTRACTS.  Ch.    18' 

when  the  contract  was  made.  If  any  law  of  limitations  existed 
at  the  time  the  contract  was  made,  that  was  a  part  of  the  con- 
tract and  could  not  he  changed,  for  laws  relating  to  the  validity, 
constrnction,  discharge,  and  enforcement  are  part  of  the  eon- 
tract.^ 

§  529.  Gold  clause. — While  the  clause  of  the  constitution  pro- 
hibiting legislation  impairing  the  obligation  of  contracts  is  not 
binding  upon  Congress,  yet  Congress,  in  certain  cases,  has  no  in- 
herent power  to  legislate.  In  the  various  decisions  of  the  United 
States  Supreme  Court  sustaining  the  validity  of  government 
notes  as  payment,  exceptions  have  been  uniformly  made  of  con- 
tracts stipulating  for  specific  kind  of  money.  And  express  con- 
tracts for  payment  of  coin  have  been  treated  like  contracts  for  the 
delivery  of  any  specific  commodity.  A  contract  to  pay  a  cer- 
tain number  of  dollars  in  gold  coin  is,  in  legal  import,  nothing 
else  than  an  agreement  to  deliver  a  certain  weight  of  standard 
gold,  to  be  ascertained  by  a  count  of  coins,  each  of  which  is  cer- 
tified to  contain  a  definite  portion  of  that  weight.  It  is  a  con- 
tract to  deliver  an  equal  weight  of  bullion  or  equal  fineness.^ 

A  party  agreeing  to  pay  or  deliver  gold  coin  at  a  future  day 
not  only  creates  a  debt  which  he  agrees  to  pay  or  discharge, 
but  he  also  waives  the  privilege  which  the  law  would  have  guar- 
anteed to  him  had  he  not  voluntarily  renounced  it,  and  takes 
upon  himself  an  obligation  to  pay  it  in  a  specific  kind  of  lawful 
money,  and  nothing  else.  The  waiver  and  obligation  are  es- 
sential conditions  and  parts  of  the  consideration  of  the  contract, 
without  which  the  contract  w^ould  not  have  been  made.  The 
agreement  to  pay  in  coin  is  as  much  a  part  of  the  consideration 
as  the  agreement  to  pay  at  all,  and  the  presumption  is  that  an 
ample  equivalent  has  been  received  for  the  promise.  The  par- 
ties are  competent  to  contract,  the  contract  is  not  against  public 

Virginia,  135  U.  S.  662,   10  S.  Ct.  Wall.    (U.   S.)    535;    MeCracken  v. 

972;    People   v.    Campbell,    59    Cal.  Hay  ward,  2  How.   (U.S.)   608. 

243.  1.  Bronson  v.  Rodea,  7  Wall.   (U. 

3.  Edwards  v.  Kearzey,  96  U.  8.  S.)  229;  Butler  v.  Horwitz,  7  Wall. 

595;    Von    Hoffman    v.    Quincey,    4  (U.  S.)  258. 

600 


Cll.     18  IMPAIRMENT    OF    OBLIGATION.  §§    529,  530 

policy,  is  not  prohibited  by  law,  is  payable  in  a  lawful  kind  of 
money,  and  is  a  lawful  contract.^ 

Congress  cannot  interfere  with  and  assume  to  reflate  the 
business  dealing  of  citizens  except  under  some  power  expressly 
or  impliedly  granted  by  the  constitution.  And  as  the  United 
States  Supreme  Court  has  already  decided  that  contracts  to  pay 
gold  coin  are  simply  engagements  for  the  delivery  of  a  specific 
commodity,  and  as  Congress  cannot  say  that  a  citizen  shall  not 
be  permitted  to  make  and  enforce  a  contract  for  the  delivery 
of  a  specific  commodity,  so  it  cannot  prohibit  a  citizen  from 
dealing  in  gold  coin. 

§  530.  Salaries  of  public  officers. — A  legislative  act  creating 
an  office,  or  fixing  a  salary,  is  not  a  contract  within  the  prohi- 
bition of  the  Federal  constitution  forbidding  the  States  to  pass 
laws  impairing  the  obligation  of  contracts.^ 

Of  course,  the  State  constitution  can  control  this  matter 
which  may  declare  for  the  permanency  of  salaries  of  public 
officers.* 

The  legislature  may  provide  for  compensating  all  public  of- 
ficers by  salaries.  Or  if  the  legislature  should  see  proper  to 
do  so,  there  is  no  provision  of  the  constitution  that  will  forbid 
exacting  from  persons  requiring,  and  who  are  specially  bene- 
fited by  the  performance  of  official  services,  a  reasonable  com- 
pensation therefor,  to  be  paid  into  the  public  treasury  to  re- 
imburse the  public  for  the  expense  incurred  in  promoting  and 

2.  Carpenter  v.  Atherton,  25  Cal.  ford  v.  Woodward,   158  111.   122,  41 

564.    See,  also,  Wallace  v.  Eldredge,  N.   E.    1097,   29   L.   R.   A.   593   and 

27  Cal.  498 ;  Harding  v.  Cowing,  28  note. 

Cal.  213;   Trebilcock  v.  Wilson,   12  3.    Butler    v.     Pennsylvania,     10 

Wall.    (U.    S.)    687;    Maryland    v.  How.     (U.    S.)     402;    Hoboken    v. 

Railroad  Co.,  22  Wall.  (U.  S.)  105;  Gear,  3  Dutch.    (N.  J.)   265;  State 

Juilliard   v.    Greenman,    110   U.    S.  v.   Smedes,  26  Miss.   47;    Swann  v. 

421,   4    S.    Ct.    122;    Hagar    v.    Re-  Buck,  40  Miss.  268. 

clamation   Dist.,   Ill    U.   S.   701,   4  4.  Koontz    v.    Franklin.    75    Pa. 

S.  Ct.  663;  Woodruflf  v.  Mississippi,  St.  l.i;. 
162  U.  8.  29?,.  16  S.  Ct.  820:    EpI- 


601 


§§    530,  531  OPEKATION    OF    CONTRACTS.  Ch.    18 

maintaining  such  offices.     And  such  process  of  raising  money 
is  no  impairment  of  contract.^ 

§  531.  Decisions  under  prior  statutes. — Courts  must  declare 
what  the  law  is  and  has  been,  and  not  what  it  shall  be  in  the 
future.  Hence,  they  are  not  bound  by  their  prior  decisions, 
for  they  may  correct  their  errors,^  And  so  the  construction 
placed  upon  one  statute  implies  no  obligation  on  its  part  to  put 
the  same  construction  upon  a  different  statute,  though  the  lan- 
guage of  the  two  may  be  similar.^ 

The  United  States  Supreme  Court  has  no  jurisdiction  be- 
cause a  State  court  changes  its  views  in  regard  to  the  proper 
construction  of  its  State  statute,  although  the  effect  of  such 
judgment  may  be  to  impair  the  value  of  what  the  State  court 
had  before  that  held  to  be  a  valid  contract.  But  where  a  case 
is  brought  in  the  United  States  courts,  comity  generally  re- 
quires of  the  United  States  Supreme  Court  that  in  matters  re- 
lating to  the  proper  construction  of  the  laws  of  the  constitution 
of  its  own  State,  the  United  States  Supreme  Court  should  fol- 
low the  decisions  of  the  State  court;  yet  in  exceptional  cases' 
the  United  States  Supreme  Court  has  refused  to  be  bound  by 
such  rule,  and  has  refused  to  follow  the  later  decisions  of  the 
State  court.  Thus,  a  writ  of  error  has  been  dismissed  in  the 
United  States  Supreme  Court,*  where  the  judgment  sought  to 
be  reviewed  was  that  of  a  State  court,  holding  that  certain 
bonds  are  void  upon  precisely  the  same  facts  that  the  United 

5.  Harrison   v.    Willis,    7    Heisk.  9  P.   123;   State  v.  Ream,   16   Neb. 

(Tenn.)     35,     19    Am.     Rep.     G04;  681,  21  N.  398;  Henderson  v.  State, 

State  V.  Howran,  8  Heisk.   (Tenn.)  137  Ind.  552,  36  N.  E.  257,  24  L.  R. 

824;  Adae  v.  Zangs,  41  Iowa,  536;  A.  469. 

Steele    v.    Railroad    Co.,    43    Iowa,  1.  Beveridge    v.     Livingston,     54 

109;    State  v.  Verwayne,  44   Iowa,  Cal.  54. 

621;  State  v.  Board,  4  Neb.  537,  19  2.  Wood  v.  BVady,  150  U.  S.   18, 

Am.  Rep.  641 ;   Perce  v.  Hallett,  13  14  S.  Ct.  6. 

R.  I.  363;  Lee  County  v.  Abrahams,  3.  Gelpcke  v.   Dubuque,    1    Wall. 

34  Ark.   166;   Murphy  v.   State,  38  (U.  S.)   175. 

Ark.   514;   Hewlett  v.   Nutt,   70   N.  4.  Railroad    Co.   v.    McClure,    10 

Car.  263;  State  v.  Judges,  21  Ohio  Wall.   (U.  S.)   511. 
St.  1 ;  State  v.  Fergus,  19  Nev.  247, 

602 


Cll.     18  IMPAIRMENT    OF    OBLIGATION.  §§    531,  532 

States  Supreme  Court  in  another  case"''  held  were  valid.  There 
was  no  subsequent  legishitive  act  impairing  their  obligations, 
and  hence  the  United  States  Supreme  Court  had  no  jurisdic- 
tion to  review  the  judginent  of  the  State  court.®  There  must 
be  some  subsequent  act  of  the  legislature  to  which  effect  lias 
been  given  by  the  judgment  of  the  State  court,  before  there  can 
be  an  impairment  of  obligations  of  contracts ;  a  change  in  the 
construction  of  an  act  is  not  an  impairment.^ 

Where  there  are  two  grounds  for  the  judgment  of  a  State 
court,  one  only  of  which  involves  a  Federal  question,  and  the 
other  is  decided  upon  an  independent  ground  and  broad  enough 
to  maintain  a  judgment  sought  to  be  reviewed,  the  United  States 
Supreme  Court  will  not  look  into  the  Federal  question.* 

§  532.  Retrospective  lav^rs. — A  retrospective  statute  affect- 
ing vested  rights  resulting  from  contracts  is  unconstitutional. 
But  this  doctrine  does  not  apply  to  remedial  statutes,  which 
may  be  retrospective  in  their  nature,  provided  they  do  not  im- 
pair contracts,  and  only  go  to  confirm  rights  already  existing.^ 

The  constitutional  prohibition  does  not  deny  remedial  legis- 
lation, nor  stand  in  the  way  of  statutes  passed  to  cure  some 
defect  or  omission  in  former  proceedings  or  enactments.^     A 

5.  Gelpcke  v.  Dubuque,  I  Wall.  131;  Beaupre  v.  Noyes,  138  U.  S. 
(U.  S.)   175.  397,  402,  11  S.  Ct.  296. 

6.  Bacon  v.  Texas,  163  U.  S.  207,  1.  Wynne  v.  Wynne,  2  Swan 
16  S.  Ct.  1023.  (Tenn.),    205;   Collins  v.    Railroad 

7.  New  Orleans  W^ater  Works  Co.  Co.,  9  Heisk.   (Tenn.)   847. 

V.    Sugar    Refining   Co.,    125    U.    S.  2.  Shields  v.  Land  Co.,  94  Tenn. 

18,  8  S.  Ct.  741;   Central  Land  Co.  123,  28  S.  W.  668,  26  L.  R.  A.  509, 

Laidley,   159   U.   S.    103,   16   S.   Ct.  40  Am.  St.  Rep.  700;  Demoville  v. 

80;  Bacon  v.  Texas,  163  U.  S.  207,  Davidson  County,    87     Tenn.     223; 

16  S.  Ct.  1023.  10  S.  W.  353;  Munn  v.  Illinois,  94 

8.  Bacon  v.  Texas,  163  U.  S.  207,  U.  S.  113;  Beer  Co.  v.  Massaehu- 
16  S.  Ct.  1023;  Rutland  R.  R.  Co.  setts,  97  U.  S.  25;  Stone  v.  Missis- 
V.  Raiload  Co.,  159  U.  S.  630,  sippi,  101  U.  S.  814;  Ewell  v. 
16  S.  Ct.  80:  Gillis  v.  Stineh-  Daggs,  108  U.  S.  150,  2  S.  Ct.  408; 
field,  159  U.  S.  608,  16  S.  Ct.  Gross  v.  Mort.  Co.,  108  U.  S.  488, 
131;  Seneca  Nation  v.  Christy,  162  2  S.  Ct.  940;  Satterlee  v.  Matthew- 
U.  S.  283,  16  S.  Ct.  828;  Eustis  v.  son,  2  Pet.   (U.  S.)   412. 

BoUes,    150    U.    S.    361,    14    S.    Ct. 

603 


§§    532,  533  OPEKATION    OF    CONTEACTS.  Cll.    18 

law  that  gives  validity  to  a  contract  cannot  impair  the  obliga- 
tion of  that  contract.^ 

A  stipulation  in  the  face  of  a  note  for  usurious  interest  can 
be  taken  advantage  of  by  the  maker  of  the  note  when  due ;  but 
he  has  no  such  vested  right  in  this  defense  or  the  contract  or 
the  usury  statutes,  so  that  the  law  may  not  be  repealed,  and  the 
note  made  collectible  by  a  retrospective  law.'* 

And  so  a  loan  of  money  made  in  one  State  by  a  corporation 
in  another  State,  though  not  valid  at  the  time  because  contrary 
to  the  law  of  the  State  where  made,  may  be  rendered  collectible 
by  a  subsequent  law.  The  latter  law,  though  destroying  a  com- 
plete defense  to  any  suit  brought  for  the  collection  of  the  loan, 
does  not  impair  the  obligation  of  the  contract.  It  enables  the 
parties  to  enforce  the  contract  they  intended  to  make,  and  does 
not  impair  the  obligation.^ 

And  so  a  statute  curing  a  defective  acknowledgment  that 
renders  a  corporate  charter  void,  and  thereby  defeats  an  exist- 
ing liability  of  the  corporators  under  the  contract  of  the  com- 
pany, does  not  impair  any  contract  obligation  of  the  other  par- 
ties to  the  contract.® 

§  533-  Conflict  of  laws. — The  construction,  so  far  as  contract 
obligations  under  a  contract  are  concerned,  constitutes  a  part 
of  the  law  as  much  as  if  embodied  in  it.  So  far  does  this  doc- 
trine extend,  that  where  a  statute  of  two  States,  expressed  in 
the  same  terms,  is  construed  differently  by  the  highest  courts, 
they  are  treated  by  the  United  States  Supreme  Court  as  dif- 
ferent laws,  each  ernbodying  the  particular  construction  of  its 
own  State,  and  enforced  in  accordance  with  it  in  all  cases  aris- 
ing under  it.^ 

The  rule  of  construction  adopted  by  the  highest  court  of  the 
State,  in  construing  its  own  constitution  and  one  of  its  own 

3.  Satterlee     v.     Matthewson,     2  6.  Shields   v.    Land  Co.,  94  Tenn. 
Pet.   (U.  S.)   412.                                          123,  28  S.  W.  668,  26  L.  R.  A.  509, 

4.  Ewell  V.  Daggs,  108  U.  S.  150,        40  Am.  St.  Rep.  700. 

2  S.  Ct.  408.  7.  Louisiana  v.  Pilsbury.  105  U. 

5.  Gross  V.  Mort.  Co.,  108  U.  S.        S.  278,  294. 
488,  2  S.  Ct.  940. 

604 


Cll.    18  IMPAIRMENT    OF    OBLIGATION.  §§    533,  534 

etatiites  in  a  case  not  involving  any  question  re-examinable  in 
the  United  States  Supreme  Court  under  the  twenty-fifth  sec- 
tion of  the  judiciary  act,  must  be  regarded  as  conclusive  in 
this  court.^ 

The  construction  given  to  a  statute  of  a  State  by  the  highest 
judicial  tribunal  of  a  State  is  a  part  of  the  statute,  and  is  as 
binding  upon  the  court  of  the  United  States  as  the  text  of  the 
statute;^  though  the  United  States  Supreme  Court  can  inquire 
as  to  the  validity  of  the  statute  itself,  as  construed  by  the  State 
court,  where  properly  presented.^" 


ARTICLE  II. 

Corporate  Charters  and  Franchises. 

Section  534.  Charter  Grantee. 

535.  Exclusive  Franchise. 

536.  State  Regulations  of  Corporations. 

537.  Subsequent  Acts  Regulating  Railroad  Companies. 

538.  Establishing  Maximum  Rates. 

539.  Legislature   Must   not   Destroy   a   Business   by   Establishing 

Maximum  Rates. 

540.  Private  Contracts. 

541.  Reservation  in  Charter, 

§  534-  Charter  grantee. — A  charter  is  a  contract  between  the 
State  and  the  corporation  receiving  it.^  The  grantee  of  the 
charter  takes  nothing  by  implication,  and  the  State  is  not  fur- 
ther bound,  nor  interested,  than  can  be  read  in  the  act.^     The 

8.  Provident  Institutions  v.  Mas-  idence  Bank  v.  Billings,  4  Pet.  (U. 
eachusetts,  6  Wall.  (U.  S.)  611;  S.)  514;  Wales  v.  Stetson,  2  Mass. 
Randall  v.  Brigham,  7  Wall.  (U.  149;  State  Bank  v.  Knoop,  16  How. 
S.)  523;  Morley  v.  Railroad  Co.,  (U.  S.)  369;  Dodge  v.  Woolsey,  18 
146  U.  S.  162,  13  S.  Ct.  54,  How.       (U.     S.)      331;       Jefferson 

9.  Leffing^vell  v.  Warren,  2  Branch  Bank  v.  Shelly,  1  Black  (U. 
Black   (U.  S.)   599,  603.  S.),  436. 

10.  Morley  v.  Railroad  Co.,  146  2.  Charles  River  Bridge  v.  War- 
U.  S.  102,  13  S.  Ct.  54.                               ren   Bridge,    11   Pet.    (U.   S.)    420; 

1.  Dartmouth  College  v.  Wood-  Stein  v.  Bienville  Co.,  141  U.  S.  67, 
ward,  4  Wheat.   (U.  S.)   518;  Prov-        11  S.  Ct.  892;  Syracuse  Water  Co. 

605 


§    534  OPEEATION    OF    CONTRACTS.  Oh.    18 

doctrine  now  is  tliat  a  strict  construction  is  required  of  public 
grants  of  franchises  and  it  denies  to  the  grantee  anything  by 
implication,^  though  there  may  be  incidental  rights.* 

The  corporation  is  entitled  to  the  benefits  of  the  contract," 
and  they  cannot  be  taken  away  by  statute.     Thus,  a  proviso 
exempting  the  company's  net  earnings  up  to  a  certain  amount, 
is  not  a  mere  gratuity,  but  a  contract,  and  the  exemption  can- 
not be  repealed  by  statute.^ 

The  rights  of  the  public  are  never  presumed  to  be  surren- 
dered to  a  corporation,  unless  the  intention  to  surrender  clearly 
appears  in  the  law.^  So  a  franchise  must  be  created  by  express 
terms  and  cannot  be  inferred  from  the  mere  silence  of  the 
charter.''  When  a  corporation  is  engaged  in  a  business  of  such 
a  character  that  the  public  are  directly  interested  in  its  proper 
management,  it  is  subject  to  such  reasonable  regulations  as  will 
secure  the  ends  of  its  creation.  The  State  must  see  that  the 
laws  are  enforced  as  will  enable  the  State  to  know  whether  cor- 
porations are  properly  exercising  their  corporate  privileges.* 
What  is  not  granted  in  terms  to  a  corporation,  or  is  incidental 
thereto,  is  reserved  to  the  State.* 

V.  Syracuse,  116  N.  Y.  167,  22  N.  E.  4.  Mintern    v.    Earu,    23    How. 

38,  5  L.  R.  A.  546;  In  re  Brooklyn,  (U.     S.)      435;   Barnett     v.     Deni- 

143  N.  Y.  596,  38  N.  E.  983,  26  L.  son,     145    U.     S.     135,     12    S.    Ct. 

R,  A.  270;  Power  v.  Athens,  99  N.  819;     Hamilton     Gaslight    Co.     v. 

Y.    592,    2    N.    E.     609;     Chenango  Hamilton   City,    146   U.   S.   258,   13 

Bridge  Co.  v.  Bridge  Co.,  27  N.  Y.  S.  Ct.  90. 

87.  5.  Commonwealth  v.  Railroad  Co., 

3.  Stein  v.  Bienville  Co.,   141   U.  164  Pa.  St.  252,  30  A.  145. 

S.  67,  11  S.  Ct.  892;  Proprietors  v.  6.  Perrin   v.   Canal    Co.,   9   How. 

Wheeley,  2  Barn.  &  Ad.  793;  Syra-  (U.  S.)   192. 

cuse  Water  Co.  v.  Syracuse,  116  N.  7.  Zanesville  v.  Gaslight  Co.,  47 
Y.  167,  22  N.  E.  38,  5  L.  R.  A.  546;  Ohio  St.  31,  23  N.  E.  55. 
In  re  Brooklyn,  143  N.  Y.  596,  38  8.  State  v.  Ins  Co.,  50  Ohio  St. 
N.  E.  983,  26  L.  R.  A.  270.  The  252,  33  N.  E.  1056. 
case  of  Ogden  v.  Gibbons,  4  Johns.  9.  Providence  Bank  v.  Bil- 
Ch.  (N.  Y.)  150,  and  Newburgh,  lings,  4  Pet.  (U.  S.)  515; 
etc.,  Turnpike  Co.  v.  Welter,  5  Charles  River  Bridge  v.  War- 
Johns.  Ch.  (N.  Y.)  101,  9  Am.  ren  Bridge,  11  Pet.  (U.  S.)  544; 
Dee.  274,  were  overruled  in  Charles  Thorpe  v.  Railroad  Co.,  27  Vt.  140, 
River  Bridge  v.  Warren  Bridge,  11  62  Am.  Dec.  625;  Fertilizing  Co.  v. 
Pet.    (U.  S.)    548.  Hyde  Park,  97  U.  S.  659;   Georgia 

606 


Cll.    18  IMPAIRMENT    OF    OBLIGATION.  §§    535,  536 

§  535-  Exclusive  franchise. — Whore  the  charter  gives  no  ex- 
clusive franchise  in  terms,  none  can  be  inferred.^  The  legisla- 
ture cannot  be  restricted  in  its  grants  of  corporate  franchises 
which  are  within  constitutional  limitations,  save  by  its  own  ex- 
press grant,  even  though  the  consequences  of  such  grant  may  be 
to  entail  loss  upon  existing  corporations  through  competition.^ 
But  the  legislature  cannot  consolidate  similar  corporations  un- 
der a  prior  charter  of  the  original  corporation  whose  charter 
was  unalterable,  and  pass  to  the  merging  corporations  special 
privileges  and  immunities  prohibited  by  the  constitution.^ 

§  536,  State  regulations  of  corporations. — Charters  are  con- 
tracts, but  it  does  not  follow  that  the  rights  secured  by  them 
are  not  subject  to  State  regulation.  The  rights  and  privileges 
which  come  into  existence  under  a  charter  are  placed  upon  the 
same  footing  with  other  legal  rights  and  privileges  of  the  citi- 
zens, and  subject  in  like  manner  to  proper  rules  for  their  due 
regulation.  The  rights  insured  to  private  corporations  by  their 
charters,  and  the  manner  of  their  exercise,  are  subject  to  such 
new  regulations  as  from  time  to  time  may  be  made  by  the  State 
with  a  view  to  the  public  protection,  health,  and  safety,  and  in 
order  to  guard  properly  the  rights  of  other  individuals  and  cor- 
porations.* 

The  charter  is  taken  subject  to  the  understanding  that  in  its 
operation  affecting  the  interests  of  society,  it  will  be  controlled 
by  such  reasonable  enactments  as  may  be  passed  for  the  preser- 
vation of  the  persons,  lives  and  property  of  the  people,  where 

Banking   Co.   v.    Smith,    128    U.    S.  Bridge   v.    Smith,     30     N.     Y.    44; 

174,  9  S.  Ct.  47;  State  v.  Coke  Co.,  Shorter  v.   Smith,  9  Ga.  517;   Col- 

34  Ohio  St.  572,  32  Am.  Rep.  390.  lins  v.  Sherman,  31  Miss.  679. 

1.  In  re  Brooklyn,  143  X.  Y.  596,  3.  People's  Gas  Light  and  Coke 
38  N.  E.  983,  26  L.  R.  A.  270.  Co.  v.  Chicago,  194  U.  S.  1,  overrul- 

2.  Charles  River  Bridge  v.  War-  ing  in  part  People  v.  Gas  Light 
ren  Bridge,  11  Pet.  (U.S.)  548;  In  and  Coke  Co.,  205  III.  482,  98  Am. 
re  Brooklyn,  143  N.  Y.  596,  38  N.  E.  St.  Rep.  244.  The  Illinois  Supreme 
983,  26  L.  R.  A.  270;  Butchers,  etc..  Court  held  this  merger  good. 

Co.,  V.  Crescent  City,  etc.,  Co.,   Ill  4.  Gorman    v.    Railroad    Co.,    26 

U.  S.  746,  4  S.  Ct.  652;  Fort  Plain        Mo.  441,  72  Am.  Dec.  220. 

607 


§§    536-538  OPEEATION    OF    CONTRACTS.  CTl.    IS 

such  enactments  do  not  contravene  the  expressed  provision  of 
the  charter.^ 

§  537-  Subsequent  acts  regulating  railroad  companies.  — 

The  right  to  use  the  parcel  of  land  appropriated  to  a  railroad 
does  not  deprive  the  legislature  of  the  power  to  enact  such  regu- 
lations, and  impose  such  liabilities  for  injuries  suffered  from 
the  mode  of  using  the  road,  as  the  occasion  and  circumstances 
may  reasonably  justify.^  So  a  statute  making  railroad  com- 
panies responsible  for  injuries  by  fire  communicated  from  their 
locomotives  applies  to  railroads  established  before  as  well  as 
since  its  passage.^  And  so  an  act  requiring  all  railroads  that 
are  in  running  order  to  be  fenced  is  not  unconstitutional  as  im- 
pairing the  rights  given  to  a  railroad  by  its  previously  granted 
charter,  by  subjecting  it  to  an  increased  burden.^ 

But  a  statute  which  provides  that  certain  classes  of  employers 
shall  give  their  dicharged  employes  the  reason  for  their  dis^ 
charge,  is  unconstitutional.  A  statute  which  undertakes  to 
make  it  the  duty  of  incorporated  railroad,  express,  telegraph, 
and  other  companies  to  engage  in  correspondence  of  this  kind 
with  their  discharged  employes,  is  void.* 

§  538.  Establishing  maximum  rates. — A  law  of  the  legisla- 
ture establishing  a  reasonable  maximum  rate  of  charges  for 

5.  Thorpe  v.  Railroad  Co.,  27  Vt.  eniacher  v.  Railroad  Co.,  41   Iowa, 

140,    62    Am.    Dec.    625;     Hart    v.  297,   20   Am.    Rep.    592;    Drady   v. 

Railroad  Co.,   13  Met.    (Mass.)    99.  Railroad   Co.,   57   Iowa,  393,   10  N. 

46  Am.  Dec.  719  and  note;  Ross  v.  754;    Grissell   v.   Railroad   Co.,   54 

Railroad  Co.,  6  Allen   (Mass.),  87;  Conn.  447,  9  A.  137,  1  Am.  St.  Rep. 

Pierce  v.   Railroad   Co.,    105   Mass.  138;  Un.  Pac.  R.  R.  Co.  v.  De  Busk, 

199.  12  Colo.  294,  20  P.  752,  3  L.  R.  A. 

1.  Pierce  v.  Railroad  Co.,  105  350,  13  Am.  St.  Rep.  221;  State  v. 
Mass.  199.  Manuf.  Co.,  18  R.  I.  16,  25  A.  246, 

2.  Lyman  v.  Railroad  Co.,  4  Cush.  17  L.  R.  A.  856. 

(Mass.),  288;  Mathews  v.  Railroad  3.  Railroad    Co.    v.    McClelland, 

Co.,  121  Mo.  298,  24  S.  W.  591,  25  25  111.  140;   Boston,  etc.  R.  R.  Co. 

L.   R.   A.    161   and   note;    Chapman  v.  County,  79  Me.  386,  10  A.  113. 
V.  Railroad  Co.,  37  Me.  92;  Pratt  V.  4.  Wallace    v.    Railroad    Co.,    04 

Railroad  Co.,  42  Me.  579;  Hooksett  Ga.  732,  22  S.  E.  579. 
V.  Railroad  Co.,  38  N.  H.  242;  Rod- 

608 


Cli.  18 


IMPAIRMENT    OF    OBLIGATION. 


§  538 


the  transportation  of  passengers  or  property  on  railroads  in  a 
State,  is  a  valid  and  constitutional  law.  Such  a  law  or  regula- 
tion does  not  impair  the  obligation  of  the  contract  in  the  charter 
of  the  railway  company.^ 

When  an  employment  or  business  becomes  a  matter  of  such 
public  interest  and  importance  as  to  create  a  common  charge  or 
burden  upon  the  citizen ;  or  when  it  becomes  a  practical  mon- 
opoly, to  which  the  citizen  is  compelled  to  resort,  and  by  means 
of  which  a  tribute  can  be  exacted  from  the  community,  it  is  a 
subject  for  regulation  by  legislative  power.  Thus,  it  is  within 
the  power  of  the  State  to  regulate  the  price  at  which  water  shall 
be  sold  by  one  who  enjoys  a  virtual  monopoly  of  the  sale.^ 

It  is  competent  for  the  legislature  to  fix  the  maximum  charges 
by  individuals  keeping  public  warehouses  for  storing,  handling 
and  shipping  grain,  and  that,  too,  when  such  persons  had  de- 
rived no  special  privileges  from  the  State,  but  were,  as  citizens 
of  the  State,  exercising  the  business  of  storing  and  handling 
grain  for  individuals.^ 


1.  People  V.  Guthrie,  149  111.  360, 
38  N.  E.  549;  Munn  v.  Illinois,  94 
U.  S.  113;  Chicago  v.  Railroad  Co., 
94  U.  S.  155;  Budd  v.  Mew  York, 
143  U.  S.  517,  12  S.  Ct.  468,  ex- 
plaining Chicago,  etc.  R.  R.  Co.  v. 
Minnesota,  134  U.  S.  418,  10  S.  Ct. 
462;  People  v.  Budd,  117  N.  Y.  1, 
22  N.  E.  670,  5  L.  R.  A.  559  and 
note,  15  Am.  St.  Rep.  460  and  note. 

2.  Spring  Valley  Water  Works  v. 
Schottler,  110  U.  S.  347,  4  S.  Ct. 
48. 

3.  Munn  v.  People,  69  111.  80; 
Ruggles  V.  People,  91  111.  256; 
People  V.  Budd,  117  N.  Y.  1,  22  N. 
E.  670,  682,  5  L.  R.  A.  559  and 
note,  15  Am.  St.  Rep.  460  and  note; 
Munn  V.  Illinois,  94  U.  S.  113; 
Budd  V.  New  York,  143  U.  S.  517, 
12  S.  Ct.  468.  See,  also,  Dow  v. 
Beidelman,  125  U.  S.  680,  8.  S.  Ct. 
1028;  Railroad  Co.  v.  Railroad  Co., 


30  Ohio  St.  604;  State  v.  Gas  Co., 
34  Oluo  St.  592;  Davis  v.  State,  64 
Ala.  58,  44  Am.  Rep.  128;  Baker  v. 
State,  54  Wis.  368,  12  N.  12;  Nash 
V.  Page,  80  Ky.  539,  44  Am.  Rep. 
490;  Girard  Storage  Co.  v.  Soth- 
ward  Co.,  105  Pa.  St.  248;  Savryer 
V.  Davis,  136  Mass.  239,  49  Am. 
Rep.  27;  Brechhill  v.  Randall,  102 
Ind.  528,  1  N.  E.  362,  52  Am.  Rep. 
695,  Stone  v.  Railroad  Co.,  62  Miss. 
607,  52  Am.  Rep.  193;  Hockett  v. 
State,  105  Ind.  250,  5  N.  E.  178,  55 
Am.  Rep.  201;  Central  Union  Tel. 
Co.  V.  Bradbury,  106  Ind.  1,  5  N.  E. 
721;  Central  Union  Tel.  Co.  v. 
State,  118  Ind.  194,  19  N.  E.  604,  10 
Am.  St.  Rep.  114  and  note;  Chesa- 
peake and  Potomac  Telephone  Co. 
V.  Tel.  Co.,  66  Md.  399,  7  A.  809.  59 
Am.  Rep.  167  and  note;  Delaware, 
etc.  R.  R.  Co.  V.  Stock-yard  Co.,  45 
N.  J.  Eq.  50,  17  A.  146,  6  L.  R.  A. 


G09 


§§    538,  539  OPERATION    OF    CONTKACTS, 


Ch.  18 


It  is  the  right  of  the  State  to  establish  limitations  upon  the 
power  of  railroad  companies  to  fix  the  price  at  which  they  shall 
carry  passengers  and  freight,  and  the  question  is  of  the  same 
character  as  that  involved  in  fixing  the  charges  to  be  made  by  the 
persons  engaged  in  the  warehousing  business/  And  so  the  legis- 
lature can  declare  what  shall  be  a  reasonable  compensation  for 
the  services  of  persons  exercising  a  public  employment,  or  fix  a 
maximum  beyond  which  any  charge  made  will  be  unreasonable.^ 


§  539.  Legislature  must  not  destroy  a  business  by  establish- 
ing maximum  rates. — ^While  the  legislature  may  itself  fix  a 
maximum  beyond  which  any  charge  would  be  unreasonable,  in 
respect  to  services  rendered  in  a  public  employment,  or  for  the 
use  of  property  in  which  the  public  has  an  interest,  it  is  sub- 
ject to  the  proviso,  however,  that  such  power  of  limitation  or 
regulation  is  not  without  limit,  and  is  not  a  power  to  destroy, 
or  a  power  to  compel  the  doing  of  the  services  without  reward, 
or  to  take  private  property  for  public  use  without  just  compen- 
sation or  without  due  process  of  law.^ 

The  United  States  Supreme  Court  has  adjvidged  in  numerous 
cases  that  the  legislature  of  a  State  has  the  power  to  prescribe 
the  charges  of  a  railroad  company  for  the  carriage  of  persons 
and  merchandise  within  its  limits,  subject  to  the  limitation  that 
the  carriage  is  not  required  without  reward,  or  upon  conditions 
amounting  to  the  taking  of  property  for  public  use  without  just 
compensation ;  and  what  is  done  must  not  amount  to  a  regula- 
lation  of  foreign  or  interstate  commerce.^ 


855    and    note;    Zanesville    v.    Gas- 
light Co.,  47  Ohio  St.  1,  2  N.  E.  60. 

4.  Wabash,  etc.  R.  R.  Co.  v.  Il- 
linois, 118  U.  S.  557,  7  S.  Ct.  4. 

5.  Dow  V.  Beidelman,  125  U.  S. 
680,  8  S.  Ct.  1028. 

1.  Smyth  V.  Ames,  169  U.  S.  466, 
18  S.  Ct.  418,  171  U.  S.  361,  18  S. 
Ct.  888;  Dow  v.  Beidelman,  125  U. 
S.  680,  8  S.  Ct.  1028. 

2.  Georgia  Banking  Co.  v.  Smith, 


128  U.  S.  174,  9  S.  Ct.  47.  See, 
also.  Stone  v.  Railroad  Co.,  116 
U.  S.  347,  352;  Stone  v.  Trust  Co. 
116  U.  S.  307;  Munn  v.  Illinois,  94 
U.  S.  113;  Chicago,  etc.  R.  R.  Go. 
V.  Iowa,  94  U.  S.  155;  Peik  v.  Rail- 
road Co.,  94  U.  S.  164;  Chicago, 
etc.  R.  R.  Co.  V.  Ackley,  94  U.  S. 
179;  Winona,  etc.  R.  R.  Co.  v. 
Blake,  94  U.  S.  180;  Stone  v.  Wis- 
consin, 94  U.  S.  181;  Ruggles  v.  II- 


610 


Cli.  18 


IMPAIRMENT    OF    OBLIGATION. 


§    540 


§  540.  Private  contracts — ^Where  private  contracts  are  un- 
affected by  any  public  interest  or  duty  to  person  or  govern- 
ment, and  the  parties  are  capable  of  contracting,  then  the  legis- 
lature cannot  interfere  for  the  purpose  of  prohibiting  the  con- 
tract or  controlling  the  terms  thereof.^  But  the  government 
may  regulate  by  law  so  that  a  person  who  ha^  contracted  to  re- 
ceive a  yard  of  cloth  or  a  bushel  of  corn,  shall  not  be  required 
to  accept  a  short  yard  or  light  bushel  as  the  seller  may  choose 
to  impose  upon  him,* 

Because  a  laAV  is  unjust,  impolitic  or  oppressive,  it  will  not 
authorize  a  court  to  declare  it  illegal,  unless  it  violates  some 
specific  provision  of  the  constitution.  A  law  may  be  unjust  in 
its  operation,  or  even  in  the  principles  upon  which  it  was 
founded ;  but  that  will  not  justify  a  court  in  expanding  the 
prohibitions  in  the  constitution  beyond  tlieir  natural  and  orig- 
inal meaning,  in  order  to  remedy  an  evil  in  any  particular  case. 
Such  extension  would  impair  the  obligation  of  contracts.^ 


linois,  108  U.  S.  526,  2  S.  Ct.  832; 
111.  Cent.  R.  R.  Co.  v.  Illinois,  108 
U.  S.  541,  2  S.  Ct.  839;  St.  Louis, 
etc,  R.  R.  Co.  V.  Gill,  156  U.  S. 
649,  657,  15  S.  Ct.  484;  Covington, 
etc.  R.  R.  V.  Sanford,  164  U.  S. 
578,  17  S.  Ct.  198;  Chicago,  etc. 
R.  R.  Co.  V.  Minnesota,  134  U.  S. 
418,  10  S.  Ct.  462,  702;  Reagan  v. 
Trust  Co.,  154  U.  S.  362,  14  S.  Ct. 
1060;  Chicago,  etc.  R.  R.  Co.  v. 
Chicago,  166  U.  S.  226,  241,  17  S. 
Ct.  581;  Chicago,  etc.  R.  R.  Co.  v. 
Wellman,  143  U.  S.  339,  344,  12  S. 
Ct.  400;  Budd  V.  New  York,  143  U. 
S.  517,  12  S.  Ct.  468. 

3.  State  V.  Goodwill,  33  W.  Va. 
179,  10  S.  E.  285,  6  L.  R.  A.  621 
and  note,  25  Am.  St.  Rep.  863  and 
note;  State  v.  Loomis,  115  Mo.  307, 
22  S.  W.  350,  21  L.  R.  A.  789  and 
note;  Godcharles  v.  Wigeman,  113 
Pa.  St.  431,  6  A.  354;  State  v. 
Coal  and  Coke  Co.,  33  W.  Va.  188, 
10  S.  E.  288,  6  L.  R.  A.  359,  25  Am. 

611 


St.  Rep.  891;  Ramsey  v.  People, 
142  111.  380,  22  N.  E.  364,  17  L.  R. 
A.  853;  Braceville  Coal  Co.  v. 
People,  147  111.  66,  35  N.  E.  621,  37 
Am.  St.  Rep.  206;  Frorer  v.  People, 
141  111.  171,  31  N.  E.  395,  22  L.  R. 
A.  340;  Willett  v.  People,  117  III. 
294,  7  N.  E.  631,  57  Am.  Rep.  869; 
Commonwealth  v.  Perry,  155  Mass. 
117,  28  N.  E.  1126,  31  Am.  St.  Rep. 
533;  People  v.  Otis,  90  N.  Y.  48; 
Ragio  V.  State,  86  Tenn.  272,  6  S. 
\\'.  401.  Compare  In  re  Housebill, 
23  Colo.  504,  48  P.  512. 

4.  Charleston  v.  Rogers,  2 
.\lcCord  (S.  Car.),  495,  13  Am. 
Dee.  751;  Stokes  v.  New  York,  14 
Wend.  (N.  Y.),  87;  Green  v.  Moffet, 
22  Mo.  529;  Yates  v.  Milwaukee,  12 
Wis.  673;  Eaton  v.  Kegan,  114 
Mass.  433. 

5.  County  Court  v.  Griswold,  58 
Mo.  192;  Hamilton  v.  County 
Court,  15  Mo.  3. 


§§    540,  541  OPERATION    OF    CONTRACTS.  Cll.    18 

However,  many  statutes  interfering  with  private  rights  are 
valid.  Thus,  a  statute  prohibiting  citizens  from  assigning  cer- 
tain claims  against  others,  for  the  purpose  of  a  suit  in  another 
State,  is  valid.® 

And  so  Congress  may  limit  the  amount  of  attorney  fee  in 
collecting  a  pension,  and  no  right  of  contracting  will  be  im- 
paired.'^ 

§  541.  Reservation  in  charter.  —  Corporations  possess  only 
those  powers  or  properties  which  the  charters  of  their  creation 
confer  upon  them,  either  expressly,  or  as  incidental  to  their  ex- 
istence. The  rights  legally  vested  in  all  corporations  cannot  be 
controlled  or  destroyed  by  any  subsequent  statute,  unless  power 
for  that  purpose  be  reserved  to  the  legislature  in  the  act  of  in- 
corporation.^ So  after  such  reservation  in  the  charter,  a  legis- 
lature may  pass  an  act  requiring  the  corporation  to  pay  weekly 
the  laborers  engaged  in  its  business  the  wages  earned  by  them 
to  within  nine  days  of  the  date  of  such  payment,  unless  pre- 
vented by  inevitable  casualty.^  By  such  restrictions  imposed  on 
a  corporation,  it  is  competent  for  the  legislature,  by  passing  a 
law,  to  amend  the  charter.^  So  a  legislature  may  prohibit  a 
corporation  from  withholding  employe's  wages.* 

But  this  reserved  power  cannot  be  used  to  take  away  prop- 
erty already  acquired  under  the  operation  of  the  charter,  or  to 
deprive  the  corporation  of  the  fruits  actually  reduced  to  pos- 
sessions of  contracts  lawfully  made.^  The  alterations  must  be 
reasonable ;   they  must  be  made  in  good  faith,  and  be  consistent 

6.  Sweeney  v.  Hunter,  145  Pa.  3.  Shaffer  v.  Mining  Co.,  55  Md. 
St.  363,  22  A.  653,  14  L.  R.  A.  594.  74. 

7.  Frisbie  v.  United  States,  157  4.  Leep  v.  Railroad  Co.,  58  Ark. 
U.  S.  160,  15  S.  Ct.  586,  407,    25    S.    W.    75,    23    L.    R.    A. 

1.  Wales  V.  Stetson,  2  Mass.  143,        264,  41  Am.  St.  Rep.   109. 

3     Am.     Dec.     39;     Greenwood     v.  5.  Sinking  Fund  Cases,  99  U.  S. 

Freight  Co.,  105  U.  S.  13;  Sherman  700;   Miller  v.  State,   15  Wall.    (U. 

V.    Smith,    1    Black.    (U.    S.),   587;  S.),  498;  Holyoke  Co.  v.  Lyman,  15 

State  V.  Person,  32  N.  J.  L.  134.  Wall.    (U.   S.),   519;    Tomlinson  v. 

2.  State  V.  Manuf.  Co.,  18  R.  I.  Jessup,  15  Wall.  (U.  S.)  459;  Rail- 
16,  25  A.  246,  17  L.  R.  A.  856.  road  Co.  v.  Maine,  96  U.  S.  510. 

612 


Cll.    18  IMPAIRMENT    OF    OBLIGATION.  §    541 

•with  the  object  and  scope  of  the  act  of  incorporation.  Sheer 
oppression  and  wrong  cannot  be  inflicted  under  the  guise  of  an 
amendment  or  alteration.^ 

The  object  of  the  reservation  is  to  preserve  to  the  State  the 
control  over  corporate  grants,  and  to  permit  the  legislature  at 
any  time  to  exercise  this  reserved  power  when  necessary  and 
proper/  although  the  nature  and  character  of  the  charter  can- 
not be  fundamentally  changed.^  The  reservation  is,  therefore, 
a  condition  upon  which  the  charter  is  granted,  and  when  it  is 
accepted  the  right  to  exercise  the  power  is  as  binding  as  if  it 
was  written  in  the  body  of  the  charter  itself.^ 

Under  such  a  law  the  legislature  has  the  authority  to  make 
any  alteration  in  a  charter  gTanted  subject  to  it,  that  will  not 
defeat  or  substantially  impair  the  object  of  the  grant,  or  any 
rights  which  have  vested  under  it,  and  that  the  legislature  may 
deem  necessary  to  secure  that  object  or  other  public  or  private 
rights.^"  Thus,  the  legislature  may  make  the  stockliolders  of  an 
incorporated  bank  liable  for  the  future  debts  of  the  corporation.^^ 
It  may  vary  the  measure,  and  thus  enlarge  the  proportion  of  the 
profits  which  a  mutual  life  insurance  company  is  required  by 
the  terms  of  its  charter  to  pay  to  charitable  institutions.^ 

Railroad  corporations  may  be  compelled  to  make  changes  in 
the  level,  grade  and  surface  of  the  roadbed,  new  structures  at 
crossings  of  other  railroads  or  of  highways,  or  stations  at  par- 
ticular places,  in  a  manner,  and  to  be  enforced  by  forms  of  pro- 
cess different  from  those  provided  for  or  contemplated  by  the 
original  charter. ^^ 

6.  Shields  v.  Ohio,  95  U.  S.  324.           12.  Massachusetts  Gen.  Hospital 

7.  State  V.  Railroad  Co.,  44  Md.  v.  Asso.  Co.,  4  Gray  (Mass.),  227. 
131.  13.  Roxbury  v.   Railroad   Co.,   6 

8.  Webster  v.  Sominary,  78  Md.  Cush.  (Mass.),  434;  Fitchburgh 
193,  28  A.  25.  Railroad  Co.  v.  Depot  Co.,  4  Allen. 

9.  Jackson  v.  Walsh,  75  Md.  (Mass.),  198;  Commonwealth  v. 
304,  23  A.  778.  Railroad  Co.,  103  Mass.  254,  4  Am. 

10.  Commissioners  v.  Water  Rep.  555;  Albany  and  Northern  R. 
Power  Co.,  104  Mass.  451.  R.   Co.   v.   Brownell,  24  N.  Y.   345, 

11.  Sherman  v.  Smith,  1  Black  overruling  Miller  v.  Railroad  Co., 
(U.  S.),  587,  21  N.  Y.  9.  21   Barb.    (N.  Y.),  513.     See,  also, 

G13 


§§    541,  542  OPERATION    OF    CONTEACTS.  Ch.    18' 

And  so  a  statute  giving  prior  liens  upon  the  property  of 
manufacturing  corporations  for  supplies  is  not  invalid  as  im- 
pairing the  charter  right  of  such  corporation  to  issue  its  bonds 
and  secure  them.^* 


ARTICLE  III. 

Police  Power  of  the  State. 

Section  542.  Regulating  the  Sale  of  Food. 

543.  Reasonableness  of  Food  Regulations. 

544.  As  to  Occupations. 
645.  Insurance. 

546.  Destruction  of  Property. 

§  542.  Regulating  the  sale  of  food. — The  police  power  of 
the  State  may  operate  to  regulate  the  sale  of  food  products  and 
their  manufacture.  Thus,  adding  a  foreign  and  artificial  in- 
gredient to  a  food  product,  even  for  the  purpose  of  color  merely, 
is  in  effect  an  adulteration,  and  the  legislature  has  the  power 
absolutely  to  prohibit  it.^  This  applies  to  coloring  matter  used 
in  vinegar.  This  provision  against  coloring  matter  is  for  the 
prevention  of  fraud,  as  the  coloring  of  vinegar  can  only  be  for 
the  purpose  of  deception  and  to  defraud  the  buyer.^ 

The  tendency  of  such  a  device  is  to  deceive  the  public,  and 
such  statute  affords  protection  therefrom,  and  is  clearly  within 
the  proper  exercise  of  the  police  power  of  the  State.  Every 
one  has  a  right  to  distinguish  for  himself  what  an  article  of 
food  is,  and  have  the  means  of  judging  for  himself  its  quality 
and  value.^ 

Spring     Valley     Water     Works     v.  1.  People   v.    Girard,    145    N.   Y. 

Schottler,   110  U.  S.  347,  4  S.  Ct.  105,  39  N.  E.  823,  45  Am.  St.  Rep. 

48.  595. 

14.  Virginia  Development  Co.  v.  2.  People   v.    Girard,    145    N.    Y. 

Iron  Co.,  90  Va.  126,  17  S.  E.  806,  105,  39  N.  E.  823,  45  Am.  St.  Rep. 

44    Am.    St.    Rep.    893.      See,    also,  595;    Weller  v.   State,   53   Ohio   St. 

Pennsylvania   R.   R.    Co.   v.   Miller,  77.  40  N.  E.   1001. 

132  U.  S.  75,  10  S.  Ct.  34.  3.  Palmer  V.  State,  39  Ohio  St. 

614 


CE.    18  IMPAIRMENT    OF    OBLIGATION.  §§    542,  543 

So  the  legislature  may  prohihit  the  manufacture  and  sale 
of  oleomargarine,  or  the  keeping  of  the  product  with  intent  to 
sell/  And  so  the  legislature,  in  the  exercise  of  the  police  power, 
for  the  purpose  of  preventing  fraud,  may  prohibit  the  sale  of 
pure  milk  mixed  with  part  water,  or  below  a  certain  standard.^ 

§  543.  Reasonableness  of  food  regulation. — The  test  of  the 
reasonableness  of  a  police  regulation  prohibiting  the  making 
and  vending  of  a  particular  article  of  food  is  not  alone  whether 
it  is  in  part  unwholesome  and  injurious.  The  mere  fact  that 
experts  may  pronounce  a  manufactured  article  intended  for 
food  to  be  wholesome  or  harmless  does  not  render  it  incompe- 
tent for  the  legislature  to  prohibit  the  manufacture  and  sale  of 
the  article.^ 

If  there  is  a  probable  ground  for  believing  that  the  only  way 
to  protect  the  public  from  being  defrauded  into  the  purchasing 
of  the  counterfeit  food  for  tlie  genuine,  then  the  statute  will 
be  upheld  though  it  prohibits  the  manufacture  of  the  article, 
even  though  the  article  prohibited  is  in  fact  innocuous,  and  its 
production  might  be  found  beneficial  to  the  public,  if  in  buying 
it,  it  could  be  distinguished  from  the  genuine  product." 

236,   48   Am.   Rep.    429;    Powell   v.  Waite,    11    Allen    (Mass.),   264,   87 

Commonwealth,   114  Pa.  St.  265,  7  Am.    Dec.    711;    Commonwealth    v. 

A.  913,  60  Am.  Rep.  350;  Powell  v.  Evans,    132     Mass.     11;     State     v. 

Pennsylvania,   127   U.   S.   678,  8   S.  Smith,   14   R.   I.    100,  51   Am.  Rep. 

Ct.  992,  1257;   State  v.  Horgan,  55  344  and   note;    People  v.   Cipperly, 

Minn.  183,  56  N.  W.  688;  Butler  v.  101  N.  Y.  634,  4  N.  E.  107;  People 

Chambers,   36   Minn.   69,   30   N.   VV.  v.   West,   106   N.  Y.   293,   12   N.   E. 

308,  1  Am.  St.  Rep.  638  and  note;  610,   60   Am.   Rep.   452;    Shivers  v. 

State  V.  Thompson,   44  Minn.   271,  Newton,  45  N.  J.  L.  409;  Common- 

46  N.  W.  410;   State  v.  Nelson,  50  wealth  v.  Farren,  9  Allen    (Mass.), 

Minn.    1,   52   N.   W.   220";    State   v.  489. 

Addington,   77   Mo.    110;    People  v.  1.  Powell    v.    Comomvealth,    114 

Armstrong,  105  N.  Y.  123,  11  N.  E.  Pa.  St.  265,  7  A.  913,  60  Am.  Rep. 

277,  59  Am.  Rep.  483.  350;    Weller   v.   State,   53   Ohio   St. 

4.  State  v.  Marshall,  64  N.  H.  77,  40  N.  E.  1001;  People  v.  Girard, 
549,  15  A.  210,  1  L.  R.  A.  51  and  145  N.  Y.  105,  39  N.  E.  823.  45 
note.  Am.   St.  Rep.   595. 

5.  State  V.  Campbell,  64  N.  H.  2.  State  v.  Addington,  77  Mo. 
402.    13   A.   585;    Commonwealth  v.  110. 

615 


§    544  OPERATION    OF    CONTEACTS.  Ch.    18 

§  544.  As  to  occupations. —  Statutes  have  often  been  passed 
for  the  protection  of  minors  and  women.  In  Massachusetts  a  law 
which  merely  prohibits  a  woman's  being  employed  in  any  manu- 
facturing establishment  more  than  a  certain  number  of  hours 
per  day  or  week,  does  not  violate  her  right  to  labor  as  many 
hours  per  day  or  week  as  she  may  see  fit,  and  is  within  the 
])olice  power.  Such  law  merely  provides  that  in  an  employ- 
ment, which  the  legislature  deems  to  some  extent  dangerous  to 
health,  no  person  shall  be  engaged  in  labor  more  than  a  certain 
number  of  hours  per  day  or  week,  and  can  be  upheld  as  a  police 
regulation.  If  the  services  to  be  performed  are  against  the 
policy  of  the  State,  or  if  the  employment  is  not  suited  to  the 
person,  then  the  State  may  regulate  the  employment.^  So  the 
State  may  regulate  the  work  of  laborers  in  mines  and  smelters.^ 

In  Illinois  a  woman  is  considered  a  person  sui  juris,  hence 
her  hours  of  labor  cannot  be  controlled  under  the  police  power, 
because  the  court  says  that  sex  alone  will  not  justify  the  exer- 
cise of  the  police  power  for  the  purpose  of  limiting  her  right 
to  contract.^  It  is  generally  held  that  an  act  of  the  legislature 
forbidding  the  employment  of  bar-maids  is  constitutional  as 
an  exercise  of  the  police  power.* 

And  such  statute  does  not  abridge  the  privileges  and  immuni- 
ties of  citizens,  or  deny  the  equal  protection  of  the  laws,  within 
the  meaning  of  the  fourteenth  amendment  of  the  Federal  con- 
stitution, but  is  a  valid  exercise  of  the  police  power  of  the 
State.^ 

1.  Commonwealth  v.  Hamilton  4.  Bergman  v.  Cleveland,  39 
Mfg.  Co.,  120  Mass.  383;  State  v.  Ohio  St.  651;  State  v.  Reynolds,  14 
Buchanan,  29  Wash.  602,  70  P.  52,  Mont.  383,  36  P.  449 ;  State  v.  Con- 
59  L.  E.  A.  342,  92  Am.  St.  Rep.  sidine,  16  Wash.  358,  47  P.  755; 
930 ;Wenham  V.  State  (Neb.),  91  N.  Ex  parte  Hayes,  98  Cal.  555,  33 
W.  421,  58  L.  R.  A.  825.  P.  337,  20  L.  R.  A,  701;   Foster  v. 

2.  Holden  v.  Hardy,  169  U.  S.  Commissioners,  102  Cal.  483,  37  P. 
366,  18  S.  Ct.  383.  763,  41  Am.  St.  Rep.  194;  overrul- 

3.  Ritchie  v.  People,  155  111.  98,  ing  In  re  Maguire,  57  Cal.  604,  40 
40  N.  E.  454,  29  L.  R.  A.  79,  46  Am.  Rep.  125.  Compare  Gastenau 
Am.  St.  Rep.  315.  This  decision  v.  Commonwealth,  108  Ky.  473, 
declared  a  statute  regulating  the  56  S.  W.  705,  94  Am.  St.  Rep.  386. 
hours  that  a  woman  should  work  in  5.  In  re  Considine,  83  Fed.  Rep. 
a  "sweat  shop,"  void.  157. 

616 


Cll.    18  IMPAIRMENT    OF    OBLIGATION.  §§    545,  546 

§  545.  Insurance. — The  business  of  insurance  against  loss 
by  fire  is,  by  reason  of  its  magnitude,  its  importance  to  property 
owners,  and  the  nature  of  the  business,  a  proper  subject  for  the 
exercise  of  the  police  power  of  the  State.  Therefore,  a  State 
which  prohibits  any  person,  partnership  or  association,  from 
issuing  any  policy  or  making  a  contract  of  indemnity  against 
loss  by  fire  without  authority  expressly  conferred  by  a  charter 
of  incorporation,  is  a  valid  exercise  of  the  police  power.^  Be- 
cause a  State  has  a  right  to  impose  conditions,  not  in  conflict 
with  the  constitution  of  the  United  States,  on  the  doing  of  in- 
surance business  within  its  territorial  bounds  by  insurance  com- 
panies chartered  by  another  State  or  to  exclude  them  altogether.^ 

In  life  insurance,  if  the  insured  commits  a  crime  and  is  le- 
gally executed,  the  policy  lapses.  The  rule  is  general  that 
losses  resulting  from  the  criminal  act  of  the  insured  will  not  be 
covered  by  policies  of  insurance  upon  life  or  property.  For  it 
is  against  public  policy  to  offer  a  reward  in  the  nature  of  insur- 
ance for  the  commission  of  crime.  And  if  the  insured  be  con- 
victed and  executed,  though  he  be  innocent  of  the  crime,  the 
policy  cannot  be  collected.  It  is  the  policy  of  every  State  to 
uphold  the  digTiity  and  integrity  of  its  courts  of  justice,  and 
public  policy  forbids  sustaining  any  policy  of  insurance  which 
depends  upon  proving  a  miscarriage  of  justice.  The  policy  of 
the  law  often  permits,  and  even  requires,  for  error,  a  new  trial 
of  a  convicted  defendant,  but  never  after  his  execution.  So, 
if  he  be  legally  executed,  but  is  not  guilty  in  fact,  the  policy 
on  his  life  becomes  void.^  And  any  wager  of  this  kind  to  show 
that  the  court  erred  in  the  judgment  of  execution,  is  void  and 
against  public  policy.* 

§  546.  Destruction  of  property. — A  prohibition  simply  up- 
on the  use  of  property  for  purposes  that  are  declared,  by  valid 
legislation,  to  be  injurious  to  the  health,  morals,  or  safety  of  the 

1.  Commonwealth     v.     Vrooman,  3.  Burt   v.   Union   Cent.   L.   Ins. 
164  Pa.  St.  30G,  30  A.  217,  25  L.  R.  Co.,  187  U.  S.  362,  23  S.  Ct.  139. 
A.  250,  44  Am.  St.  Rep.  603.  4.  Evans  v.  Jones,  5  Mees.  &  W. 

2.  Doyle  v.  Ins.  Co.,  94  U.  S.  535.  77. 

G17 


§§    546,  547  OPERATION    OF    CONTEACTS.  Ch.    18 

community,  cannot  be  deemed  a  taking  or  an  appropriation  of 
property  for  the  public  health.  The  exercise  of  the  police  power 
by  the  destruction  of  property  which  is  itself  a  public  nuisance, 
or  the  prohibition  of  its  use  in  a  particular  way,  whereby  its 
value  becomes  depreciated,  is  a  valid  use  of  the  police  power.^ 
Thus,  a  State  has  the  constitutional  power  to  declare  that  any 
place  kept  and  maintained  for  the  illegal  manufacture  and  sale 
of  intoxicating  liquors  shall  be  deemed  a  common  nuisance,  and 
be  abated,  although  that  when  the  owners  purchased  the  prop- 
erty the  laws  of  the  State  did  not  forbid  the  manufacture  of 
intoxicating  liquors.^ 

The  supervision  of  the  public  health  and  the  public  morals 
is  a  governmental  power,  continuing  in  its  nature  to  be  dealt 
with  as  the  special  exigencies  of  the  moment  may  require ;  for 
this  purpose  the  largest  legislative  discretion  is  allowed,  and  the 
discretion  cannot  be  parted  with  any  more  than  the  power 
itself.' 


ARTICLE  IV. 

Police  Power  and  Interstate  Commerce. 

Section  547.  Police  Power  Controlled  by  Federal  Constitution. 

548.  Interstate  Commerce — Police  Power. 

549.  State  Statutes  Interfering  with  Interstate  Commerce. 

550.  Surrender  of  the   Police  Power  of  the  State. 

551.  Imposing  a  Tax  Upon  Selling  Goods. 

552.  Tax  Upon  Interstate  Commerce. 

553.  When   is   the   Imported   Commodity   Incorporated  with   the 

General  Mass  of  Property. 

554.  Statute  Incorporating  Imported  Goods. 

§  547.  Police  power  controlled  by  federal  constitution. — 

The  State,  Avhen  providing,  by  legislation,  for  the  protection 
of  the  public  health,  the  public  morals,  or  the  public  safely, 

1.  Mugler   V.  Kansas,    123   U.   S.  3.  Stone  v.  Mississippi,  101  U.  S. 
623,  8  S.  Ct.  273.                                         814. 

2.  Mugler  v.  Kansas,   123   U.   S. 
623,  8  S.  Ct.  273. 

618 


CTl.    18  IMPAIRMENT    OF    OBLIGATION.  §    547 

is  subject  to  the  paramount  antliority  of  the  constitution  of  the 
United  States,  and  may  not  violate  ri2;hts  secured  or  guaran- 
teed by  that  instrument,  or  interfere  with  the  execution  of  the 
powers  confided  to  the  general  government.^  And  so  no  State 
cannot,  by  any  contract,  limit  the  exercise  of  the  police  power 
to  the  prejudice  of  the  public  health  and  the  public  morals.^ 

If  a  State  should  grant  a  charter  to  a  private  corporation  to 
conduct  a  lottery,  and  for  which  the  corporation  paid  to  the 
State  a  valuable  consideration  in  money,  the  legislature  may 
revoke  the  charter,  because  no  State  can  bargain  away  the  public 
health  or  the  public  morals.^ 

The  constitutional  prohibition  upon  State  laws  impairing  the 
obligation  of  contracts  does  not  restrict  the  power  of  the  State 
to  protect  the  public  health,  the  public  morals,  or  the  public 
safety,  as  the  one  or  the  other  may  be  involved  in  the  execution 
of  such  contracts.  The  same  rule  applies  to  such  contracts  as 
to  all  other  contracts  and  property,  whether  o^vned  by  national 
persons  or  by  corporations.  All  property  in  this  country  is  held 
under  the  implied  obligation  that  the  owner's  use  of  it  shall  not 
be  injurious  to  the  community.* 

And  while  a  State  cannot  impair  the  exclusive  right  of  a 
patentee,  or  of  his  assignee,  in  the  discovery  described  in  the 
letter-patent,  the  tangible  property,  the  fruit  of  the  discovery, 
is  not  beyond  control  in  the  exercise  of  a  State's  police  power.^ 
Congress  has  uniformly  recognized  the  necessity,  growing  out 
of  the  fundamental  conditions  of  society,  of  upholding  State 
police  regulations  which  are  enacted  in  good  faith,  and  has  ap- 

1.  Henderson  v.  New  York,  92  cent  City  Co.,  Ill  U.  S.  740,  4  S. 
U.  S.  259;   Railroad  Co.  v.  Husen,        Ct.  652. 

95  U.  S.  465;  New  Orleans  Gas  Co.  3.  Stone   v.   Mississippi,    101    U. 

V.  Light  Co.,  115  U.  S.  650,  6  S.  Ct.  S.   814;    Douglas  v.  Kentucky,   168 

252;    Walling  v.  Michigan.    116   U.  U.  S.  488,  18  S.  Ct.  199. 

S.  446,  6   S.  Ct.  454;   Yick  Wo  v.  4.  Beer  Co.  v.  Massachusetts,  97 

Hopkins,    118   U.   S.   356,   6   S.   Ct.  U.  S.  25;   Commonwealth  v.  Alger, 

1064;    Morgan's    Steamship    Co.    v.  7   Cush.    (Mass.)    53. 

Board,  118  U.  S.  455,  6  S.  Ct.  1114.  5.  Patterson  v.  Kentucky,  97  U. 

2.  Butchers'    Union   Co.   v.   Cres-  S.  501. 


619 


§§    547-549  OPERATION    OF    CONTRA.CTS.  Ch.    18 

propriate  and  direct  connection  with  the  protection  to  life, 
health,  and  property  which  each  State  owes  to  its  citizens.^ 

So  the  enforcement  of  an  ordinance  may  operate  to  destroy 
the  hiisiness  of  a  company,  and  seriously  to  impair  the  value  of 
its  property,  yet  the  police  power  will  uphold  it  if  appropriate 
to  the  subject.^  Therefore,  a  party  in  contracting  must  take 
into  consideration  his  rights  under  the  police  power. 

§  548.  Interstate  commerce  —  Police  power.  —  Interstate 
commerce  consists  in  the  transportation,  purchase,  sale  and  ex- 
change of  commodities  among  the  States,  and  is  national  in  its 
character  and  must  be  governed  by  a  uniform  system,  which 
does  not  come  under  the  police  power  of  any  State.  So,  where 
laws  are  enacted  in  the  exercise  of  the  police  power  of  the  State, 
they  are  not  valid  if  they  inhibit  the  receipt  of  an  imported  com- 
modity, or  its  disposition  before  it  has  ceased  to  become  an 
article  of  trade  between  the  States,  or  another  country  and  thisi, 
because  they  amount  to  a  regulation  of  interstate  commerce.^ 

Congress  cannot  transfer  legislative  powers  to  a  State  nor 
sanction  a  State  law  in  violation  of  the  Federal  constitution; 
and  if  it  adopts  a  State  law  as  its  own,  it  must  be  one  compe- 
tent for  it  to  enact  itself,  and  not  a  law  passed  in  the  exercise 
of  the  police  power.^  Congress  can  neither  delegate  its  own 
powers  nor  enlarge  those  of  the  State. 

§  549.  State  statutes  interfering  with  interstate  commerce. 

— So  where  a  statute  interferes  with  interstate  commerce, 
though  enacted  as  a  police  measure,  it  is  unconstitutional. 
Thus,  where  a  State  prohibits  a  certain  class  of  cattle  to  be 

6.  Patterson  v,  Kentucky,  97  U.  1.  Bowman  v.  Railroad  Co.,  125  U. 
S.  501;  United  States  v.  Dewitt,  9  S.  465,  8  S.  Ct.  689,  1062;  Leisy  v. 
Wall.  (U.  S.)  41;  License  Tax  Hardin,  135  U.  S.  100,  10  S  Ct. 
Cases,  5   Wall.    (U.   S.),  462;   Per-  681. 

vear  v.  Commonwealth,  5  Wall.  (U.  2.  Cooley  v.   Wardens,    12   How. 

S.),475.  (U.    S.),   299;    Gunn   v.   Barry,    15 

7.  Fertilizing  Co.  v.  Hyde  Park,  Wall.  (U.  S.),  610;  United  States 
97  U.  S.  659.  V.  Dewitt,  9  Wall.    (U.  S.),  41. 

020 


Cll.    18  IMPAIKMENT    OF    OBLIGATION.  §    549 

shipped  tlircmgli  its  territory,  and  the  object  of  the  statute  is  not 
a  quarantine  or  inspection  law,  it  is  invalid,  as  its  enforcement 
would  obstruct  interstate  commerce  and  discriminate  between 
the  property  of  citizens  of  one  State  and  that  of  citizens  of 
other  States.^  And  so  where  a  statute,  by  its  necessary  opera- 
tion, excludes  from  the  market  of  a  State  all  fresh  beef,  veal, 
mutton,  lamb,  or  pork,  in  whatever  form,  and  although  entirely 
sound,  healthy,  and  fit  for  human  food  taken  from  animals 
slaughtered  in  other  States,  it  is  unconstitutional ;  such  statute 
discriminates  against  the  products  of  other  States  and,  there- 
fore, interferes  with  interstate  commerce.^ 

A  State  may  establish  regulations  for  the  protection  of  its 
people  against  the  sale  of  unwholesome  meats,  provided  such 
regulations  do  not  conflict  with  the  powers  conferred  by  the  con- 
stitution upon  Cong-ress,  or  infringe  rights  granted  or  secured 
by  that  instrument.^  Any  local  regulation  which,  in  terms  or 
by  its  necessary  operation,  denies  equality  to  all  in  the  markets 
of  the  State,  is,  when  applied  to  the  people  and  products  or  in- 
dustries of  other  States,  a  direct  burden  upon  commerce  among 
the  States,  and,  therefore,  void.  Thus,  a  statute  relating  to  the 
inspection  of  flour  brought  into  a  State,  is  unconstitutional,  if 
it  requires  inspection  of  flour  from  other  States,  where  no  such 
inspection  is  required  of  flour  manufactured  at  home.*  And  so 
where  a  statute  imposes  a  tax  upon  persons  not  residing  or  hav- 
ing their  principal  places  of  business  within  the  State,  but  en- 
gaged there  in  the  business  of  selling  or  soliciting  the  sale  of 
intoxicating  liquors  to  be  shipped  into  the  State  from  places 
without  it,  but  not  imposing  a  similar  tax  upon  persons  selling 
or  soliciting  the  sale  of  intoxicating  liquors  manufactured  in 
that  State,  it  is  invalid.^ 

But  a  State  statute  is  not  to  be  deemed  a  regulation  of  com- 

1.  Railroad  Co.  v.  Plusen,  95  U.  4.  Voight  v.  Wright,  141  U.  S. 
S.  465.  62.  11  S.  Ct.  855. 

2.  Minnesota  v.  Barber,  136  5.  Walling  v.  Michigan,  116  U. 
U.  S.  313,  10  S.  Ct.  862.  S.  446,  6  S.  Ct.  454. 

3.  Brimmer  v.  Rebman,  138  U.  S. 
78,  11  S.  Ct.  213. 

621 


§§    549,  550  OPEKATION    OF    CONTEACTS,  Ch.    18 

merce  among  the  States  simply  because  it  may  indirectly  or 
incidentally  affect  such  commerce.^  So  a  State  statute  impos- 
ing a  penalty  for  the  violation  of  a  duty  of  a  telegraph  company, 
though  it  does  interstate  business,  which  duty  the  company  owes 
by  the  general  law  of  the  land,  is  no  regulation  of  or  an  obstruc- 
tion to  interstate  commerce.' 

The  citizens  of  one  State  have  the  right  to  enter  the  markets 
of  every  other  State  to  sell  their  products,  or  to  buy  whatever 
they  need,  and  all  interference  with  the  freedom  with  interstate 
commerce  by  State  legislation  is  void.  Under  the  constitution 
of  the  United  States,  business  transactions  cannot  be  delimited 
by  State  boundaries.^  Thus,  where  a  statute  provides  that  a 
city  and  contractor  shall  not  purchase  certain  lines  of  dressed 
stone  to  be  used  in  the  city  improvements,  outside  of  the  State, 
it  is  void.^  And  a  contract  made  under  such  statute  has  a  ten- 
dency to  restrict  interstate  commerce ;  the  statute  and  contract 
must  fall  together.^" 

§  550.  Surrender  of  the  police  power  of  the  state. — The  re- 
served police  power  of  the  States  cannot  control  the  prohibitions 
of  the  Federal  constitution  nor  the  powers  of  the  government 
it  created,^  but  the  grant  to  Congress  of  authority  to  regulate 
foreign  and  interstate  commerce  does  not  involve  a  surrender  by 
the  States  of  their  police  power.  Thus,  a  statute  to  prevent 
deception  in  the  manufacture  and  sale  of  imitation  butter,  in  its 

6.  Hennington  v.  Georgia,  163  U.  8.  People  v.  Hawkins,  157  N.  Y. 
S.  299,  16  S.  Ct.  1086;  New  York,  1,  51  N.  E.  257,  42  L.  R.  A.  490,  68 
etc.  R.  R.  Co.  V.  New  York,  165  U.  Am.  St.  Rep.  736;  People  v.  Buffalo 
S.  628,  17  S.  Ct.  418;  Chicago,  etc.  Fish  Co.,  164  N.  Y.  193,  58  N.  E. 
R.  R.  Co.  V.  Solan,   169  U.  S.   133,  34. 

18  S.  Ct.  289;  Richmond,  etc.  R.  R.  9.  People  v.  Coler,  166  N.  Y.  144, 

Co.  V.  Tobacco  Co.,  169  U.  S.  311,  59  N.  E.  776.    See,  also,  Allgeyer  v. 

18  S.  Ct  335;   Missouri,  etc.  R.  R.  Louisiana,  165  U.  S.  578,  17  S.  Ct. 

Co.  V.  Haber,  169  U.  S.  613,  18  S.  427. 
Ct.  488.  10.  Addyston  Pipe  and  Steel  Co. 

7.  Western  Union  Tel.  Co.  v.  v.  United  States,  175  U.  S.  211,  20 
James,    162    U.    S.    650,    16    S.    Ct.  S.  Ct.  96. 

934.     See,  also,  Missouri,  etc.  R.  R.  1.  New  Orleans  Gas  Co.  v.  Light 

Co.  V.  Haber,  169  U.  S.  513,  18  S.        Co.,  115  U.  S.  650,  6  S.  Ct.  252. 
Ct.  488. 

622 


Cll.    18  IMPAIRMENT    OF    OBLIGATION.  §§    550,  551 

application  to  the  sales  of  oleomargarine  artificially  colored  so 
as  to  cause  it  to  look  like  yellow  bntter  and  brought  into  the 
State,  is  not  in  conflict  with  Federal  constitution.^ 

So  a  State  statute  may  prescribe  regulations,  applicable  to 
carriers  engaged  in  interstate  and  foreign  commerce,  to  insure 
the  safety  of  persons  carried  by  them  as  well  as  the  safety  of 
persons  and  things  liable  to  be  affected  by  their  acts  while  they 
are  within  the  territorial  jurisdiction  of  the  State.^  So  a  stat- 
ute making  it  a  public  offense  for  any  one  to  practice  medicine 
in  the  State  without  complying  with  certain  prescribed  condi- 
tions, is  valid.* 

A  State  is  not  powerless  to  prevent  the  sale  of  articles  of 
food  manufactured  in  or  brought  from  another  State,  and  sub- 
jects of  traffic  or  commerce,  if  their  sale  may  cheat  the  people 
into  purchasing  something  they  do  not  intend  to  buy,  and  which 
is  wholly  different  from  what  its  condition  and  appearance 
impart.^ 

The  judiciary  of  the  United  States  will  not  strike  down  a 
legislative  enactment  of  a  State,  especially  if  it  has  direct  con- 
\jiection  with  the  social  order,  the  health  and  the  morals  of  a 
people,  unless  such  legislation  plainly  and  palpably  violates  some 
rights  granted  or  secured  by  the  national  constitution  or  en- 
croachment upon  the  authority  delegated  to  the  United  States 
for  the  attainment  of  objects  of  national  concern.^ 

§  551.  Imposing  a  tax  upon  selling  goods. — ^Statutes  impos- 
ing a  penalty  for  peddling  without  a  license,  all  goods  of  par- 
ticular kinds,  and  not  discriminating  against  goods  brought 
from  other  States,  or  from  foreign  countries,  are  valid  and  not 
unconstitutional.^ 

2.  Plumley  v.  Massachusetts,  155  5.  Plumley  v.  Massachusetts,  155 
U.  S.  461,  15  S.  Ct.  154.     See,  also,  U.  S.  461,  15  S.  Ct.  154;  Gibbons  v. 
Powell  V.   Pennsylvania,   127   U.   S.  Ogden,  9  Wheat.   (U.  S.),  1,  203. 
678,  8  S.  Ct.  992,  1257.  6.  Gibbons    v.    Ogden,    9    Wheat. 

3.  Smith  V.  Alabama,  124  U.  S.  (U.  S.)  1,  203;  Plumley  v.  Massa- 
465,  8  S.  Ct.  564.  chusetts,   155  U.   S.  461,   15   S.   Ct. 

4.  Dent  v.  West  Virginia,  129  U.  154. 

S.  114,  9  S.  Ct.  231.  1.  Commonwealth  V.  Harmel,  166 

623 


§§    551,  652  OPERATION    OF    CONTEACTS.  Ch.    18 

If  a  discrimination  is  made  against  imported  goods,  the  stat- 
ute is  invalid.^  And  the  rights  conferred  by  the  patent  laws 
to  inventors  to  sell  their  inventions  does  not  take  the  tangible 
property  from  the  operation  of  the  tax  and  license  laws  of  a 
State ;  and  one  reason  why  a  tax  imposed  by  a  State  upon  per- 
sons selling,  without  license,  patented  articles  not  owned  by 
them,  is  invalid,  as  applied  to  patented  articles  manufactured 
in  another  State,  is  where  the  statute  makes  a  clear  discrimina- 
tion in  favor  of  home  manufacturers  and  against  the  manufac- 
turers of  other  States.^ 

But  where  goods  have  arrived  within  the  State  and  have  be- 
come a  part  of  all  property,  a  tax  laid  alike  on  all  property 
within  a  city,  is  valid  and  not  a  law  regulating  interstate 
commerce.* 

§  552.  Tax  upon  interstate  commerce. — The  States  cannot 
tax  or  regulate  interstate  commerce.  So  a  lincense  applied  to 
persons  soliciting  orders  for  goods  on  behalf  of  a  firm  in  another 
State,  is  unconstitutional  as  inconsistent  with  the  power  of  Con- 
gress to  regulate  commerce  among  the  States.^  But  as  soon  as 
the  goods  are  in  the  State  and  become  part  of  the  general  mass 

Pa.  St.  89,  30  A.  1036,  27  L.  R.  A.  493;    People   v.    Russell,    49    Mich. 

388;   Cowles  v.  Brittain,  2  Hawks,  617,   14  N.  568,  43  Am.  Rep.  478; 

(N.  Car.)  204;  Wynne  v.  Wright,  1  Howe  Machine  Co.  v.  Gage,  100  U. 

Dev.  and  Bat.  (N.  Car.),  19;  Tracy  S.  676. 

V.  State,  3  Mo.  3 ;  Morrill  v.  State,  2.  Cook  v.  Pennsylvania,  97  U.  S. 

38  Wis.  428,  20  Am.  Rep.  12 ;  Howe  566 ;   Woodruff  v.  Parham,  8  Wall. 

Machine     Co.     v.     Gage,     9     Baxt.  (U.    S.),    123;    Hinson   v.    Lott,    8 

(Tenn.),  518;  Graffty  v.  Rushville,  Wall.   (U.  S.),  148;  Welton  v.  Mis- 

107  Ind.  502,  8  N.  E.  609,  57  Am.  souri,  91  U.  S.  275. 

Rep.   128  and  note;   State  v.  Rich-  3.  Webber  v.  Virginia,  103  U.  S. 

ards,  32  W.  Va.   348,  9  S.  E.  245,  344. 

3  L.  R.  A.  705  and  note;   Common-  4.  Brown  v.  Houston,   114  U.   S. 

wealth  V.  Gardner,  133  Pa.  St.  284,  622,  632,  5  S.  Ct.  1091. 

19    A.    550,    37    L.    R.   A.    666    and  1.  Robbins      v.      Shelly      Taxing 

note,   19  Am.   St.  Rep.  645;   Emert  Dist.,  120  U.  S.  489,  7  S.  Ct.  592; 

V.  Missouri,    156   U.   S.   296,    15   S.  Asher  v.  Texas,  128  U.  S.  129,  9  S. 

Ct.      367;      Attorney      General      v.  Ct.  1 ;  Brennan  v.  Titusville,  153  U. 

Tongue,  12  Price,  51,  60;   Common-  S.  289,  14  S.  Ct.  829. 

wealth  V.   Ober,   12  Cush.    (Mass.) 

624 


Ch.    18  IMPAIRMENT    OF    OBLIGATION.  §§    552,  553 

of  property,  they  will  become  liable  to  be  taxed  in  the  same 
manner  as  other  property  of  similar  character.^ 

Where  goods  are  sent  from  one  State  to  another  for  sale,  or 
in  consequence  of  a  sale,  they  become  part  of  its  general  prop- 
erty and  amenable  to  its  laws ;  provided  that  no  discrimination 
be  made  against  them  as  goods  from  another  State,  and  that  they 
be  not  taxed  by  reason  of  being  brought  from  another  State, 
but  only  taxed  in  the  usual  way  as  other  goods  are.^  But  this 
exemption  of  interstate  and  foreign  commerce  from  State  regu- 
lation does  not  prevent  the  State  from  taxing  the  property  of 
those  engaged  in  such  commerce  located  within  the  State,  as 
the  property  of  other  citizens  is  taxed,  nor  from  regulating 
matters  of  local  concern  which  may  incidentally  affect  com- 
merce.* 

But  a  statute  prohibiting  the  sale  of  intoxicating  liquors 
without  a  license  is,  as  applied  to  a  sale  of  liquors  in  the  orig- 
inal packages  and  by  the  person  who  had  brought  them  into  the 
State  from  another  State,  inconsistent  with  the  powers  of  Con- 
gress to  regulate  commerce  among  the  States,  and  unconsti- 
tutional.^ 

§  553-  When  is  the  imported  commodity  incorporated  with 
the  general  mass  of  property. — The  point  of  time,  when  the 
prohibition  ceases  and  the  power  of  the  State  to  tax  commences, 
is  not  the  instant  when  the  article  enters  the  country,  but 
when  the  importer  has  so  acted  upon  it  that  it  has  become  in- 
corporated and  mixed  up  with  the  mas^  of  property  in  the  coun- 
try, which  happens  when  the  original  package  is  no  longer  such 
in  his  hands ;    that  the  distinction  is  obvious  between  a  tax 

2.  Brown  v.  Houston,  114  U.  S.  S.  1,  12  S.  Ct.  810;  Postal  Tele- 
622,  5  S.  Ct.  1091.  graph  Co.  v.  Charleston,  153  U.  S. 

3.  Howe  Machine  Co.  v.  Gage,  692,  14  S.  Ct.  1094;  Postal  Tele- 
100  U.  S.  676.  graph  Co.  v.  Adams,  155  U.  S.  688, 

4.  Leloup   V.    Mobile,    127    U.    S.  15  S.  Ct.  268,  360. 

640,  8  S.  Ct.  1380.    See,  also.  Pull-  5.  Leisy    v.    Hardin,    135    U.    S. 

man  Car.  Co.  v.  Pennsylvania.  141  100,  10  S.  Ct.  681;  Lyng  v.  Michi- 

U.  S.     18,  11  S.  Ct.  876;  Fieklin  v.  gan,  135  U.  S.  161,  10  S.  Ct.  725. 
Shelly      Taxing      Dist.,      145      U. 

625 


§§    553,  554  OPERATION    OF    CONTBACTS.  Ch.    18 

which  intercepts  the  import  as  an  import  on  its  way  to  become 
incorporated  with  the  general  mass  of  property,  and  a  tax  which 
finds  the  article  already  incorporated  with  that  mass  by  the  act 
of  the  importer.^ 

§  554.  Statute  incorporating  imported  goods. — Congress  has 
enacted  that  all  imported  liquors  or  liquids  shall,  upon  arrival 
in  a  State,  fall  within  the  category  of  domestic  articles  of  a 
similar  nature ;  that  they  shall  be  subject  to  the  operation  and 
effect  of  the  laws  of  such  State  enacted  in  the  exercise  of  the 
police  power,  to  the  same  extent  and  in  the  same  manner  as 
though  such  liquids  or  liquors  had  been  produced  in  such  State, 
and  shall  not  be  exempt  therefrom  by  reason  of  being  intro- 
duced therein  in  original  packages  or  otherwise.^  This  statute 
is  valid  and  is  a  constitutional  exercise  of  the  legislative  power 
conferred  upon  Congress.  After  this  act  took  effect  such  liquors 
or  liquids,  introduced  into  a  State,  whether  in  original  packages 
or  otherwise,  became  subject  to  the  operation  of  such  of  its 
then  existing  laws  as  has  been  properly  enated  in  the  exercise  of 
its  police  power.^ 

5.  Brown  v.  Maryland,  12  Wheat.  2.  In  re  Rahrer,  140  U.  S.  545. 

(U.  S.),  419.  11  S.  Ct.  865. 

1.  26  U.  S.  Stat.  313. 


626 


oil.    18  IMPAIRMENT    OF    OBLIGATION.  §    555 

ARTICLE  V. 

Impairment  of  Remedy. 

Section  555.  Laws  Enter  into  the  Contract. 

556.  Altering  the  Remedy. 

557.  Retrospective  Acts. 

558.  Exemptions. 

559.  Limitations. 

560.  Abolishing  Remedy. 

561.  Redemption  from  Sales  of  Real  Estate. 

562.  Specific  Liens. 

563.  Changing  Rate  of  Interest  on  Judgment. 

564.  Reducing  Rate  of  Interest  in  Redemption. 

565.  Change  of  Procedure. 

566.  Extending  the  Period  of  Redemption. 

567.  Resale  When  Bought  by  Mortgagor  for  Less  than  the  Debt. 

§  555-  Laws  enter  into  the  contract. — The  laws  subsisting 
in  a  State  at  the  time  a  contract  is  made,  including  those  which 
affect  its  validity,  construction,  discharge,  or  enforcement,  en- 
ter into  and  form  a  part  of  the  contract,  as  if  thej  were  ex- 
pressly referred  to  or  incorporated  in  its  terms.^  And  so  the 
laws  which  prescribe  the  mode  of  enforcement  of  a  contract, 
which  are  in  existence  when  it  is  made,  are  so  far  a 
part  of  it  that  no  changes  in  these  laws  which  seriously 
interfere  with  that  enforcement  are  valid,  because  they 
impair  its  obligation  within  the  meaning  of  the  Federal 
constitution.^     The  meaning  of  this  rule  is  that  the  laws  exist- 

1.  Van    Hoffman     v.     Quincy,   4  Williams,   84   N.   Car.   281;    Banks 

Wall.    (U.     S.),     550;     W^alker     v.  v.  Dewitt,  42  Ohio  St.  263;   Elliott 

Whitehead,  16  Wall.   (U.  S.),  314;  v.  Railway  Co.,  10  H.  L.  Cas.  333. 
Edwards  v.  Kearzey,  96  U.  S.  595;  2.  Barnitz  v.  Beverly,  163  U.  S. 

Seibert  v.  I^wis,  122  U.  S.  284,  7  118,    16    S.    Ct.    1042;    Watkins   v. 

S.  Ct.   1190;   Louisiana  v.  New  Or-  Glenn,  55  Kan.    417,    40    P.    316; 

leans,    102   U.   S.   206;    Robards   v.  Greenwood  v.  Butler,  52  Kan.  424, 

Brown,    40    Ark.    423;    Webster  v.  b-t  P.  967,  22  L.  R.  A.  465;   Bron- 

Rees,  23  Iowa,  269 ;  Rogers  V.  Allen,  son      v.      Kinzie,      1      How.       (U. 

47  N.  H.  529;  Roberts  v.  Cocke,  28  S.)     316;     Ogden    v.     Sanders,    12 

Gratt.  (Va.)  207;  Van  Schoonhoven  Wheat.   (U.  S.)  259;  McCracken  v. 

V.  Curley,  86  N.  Y.   187;   Brine  v.  Hay  ward,  2  How.   (U.  S.)   612. 
Ins.  Co.,  96  U.   S.  627;   O'Kelly  v. 

627 


§§    555-55Y  OPERATION    OF    CONTEACTS.  Ch.    18 

ing  at  the  time  a  contract  is  made,  which  enter  into  and  form 
a  part  of  it,  are  only  those  which,  in  their  direct  or  necessary 
legal  operation,  control  or  affect  the  obligations  of  such  con- 
tract.^ 

§  556.  Altering  the  remedy. — Whatever  belongs  merely  to 
the  remedy  may  be  altered  according  to  the  will  of  the  State, 
provided  the  change  does  not  impair  the  obligation  of  the  con- 
tract. If  it  makes  a  material  alteration,  it  is  immaterial 
whether  it  is  done  by  acting  on  the  remedy  or  directly  on  the 
contract  itself.  In  either  case  it  is  prohibited  by  the  constitu- 
tion.* So  an  act  requiring  the  holder  of  certain  coupons  first 
to  pay  his  taxes  in  cash,  and  file  his  coupon  in  the  court,  and 
afterwards,  in  a  circuitous  \vay,  receive  back  his  money,  is  an 
act  affecting  the  remedy  only,  and  does  not  impair  the  obliga- 
tion of  contract,  although  the  funding  act  under  which  the 
coupons  were  issued  required  the  State  to  receive  them  for  all 
taxes  and  demands  due  her.^ 

The  laws  in  reference  to  which  the  parties  must  be  assumed 
to  have  contracted  are  those  which  in  their  direct  or  necessary 
legal  operation  control  or  affect  the  construction  and  operation 
and  obligations  of  the  contract,  and  not  those  which  affect  merely 
the  remedy." 

§  557-  Retrospective  acts. — A  statute  may  not  be  void  be- 
cause retrospective.     Thus,  a  statute  requiring  the  holder  of  a 

3.  Conn.  Muu  L.  etc.  Insurance  Wall.  (U.  S.),  575;  Mobile  v.  Wat- 
Co.  V.  C.ushman,  108  U.  S.  51,  65,  2  son,  116  U.  S.  305,  6  S.  Ct.  398. 
S.    Ct.    949.      See,    also,   Gantly   v.  4.  Bronson  v.  Kinzie,  1  How.   (U. 
Ewing,  3  How.     (U.    S.)     716;    Ex  S.)    311;  Tennessee  v.  Sneed,  96  U. 
parte  Christy,  3  How.  (U.  S.)   328;  S.  74. 

Clark  V.  Reyburn,  8  Wall.   (U.  S.),  5.  Antoni  v.  Greenbow,  107  U.  S. 

322;  Walker  v.  Wliitehead,  16  Wall.  769,  2   S.   Ct.   91. 

(U.  S.)   314;  Howard  v.  Bugbee,  24  6.  Connecticut   Mut.    L.   etc.    In- 

How.      (U.      S.)      461;      Gunn     v.  surance  Co.  v.  Cushman,   108  U.  S. 

Barry,  15  Wall.  (U.  S.),  601;  Mem-  51,  2  S.  Ct.  236;  Morly  v.  Railroad 

phis  V.  United  States,  97  U.  S.  293;  Co.,   146   U.   S.    162,   13   S.   Ct.   54; 

Kring  v.   Missouri,    107   U.   S.   233,  Fourth  Nat.  Bank  v.  Franklyn,  120 

2  S.  Ct.  443;  Britz  v.  Muscatine,  8  U.  S.  747,  7  S.  Ct.  757;   Curtis  v. 

Whitney,  13  Wall.   (U.  S.)   68. 

628 


Cll.    18  IMPAIRMENT    OF    OBLIGATION.  §§    557,  558 

tax  sale  certificate,  made  before  its  passage,  to  give  the  occupant 
of  the  land  tlirce  niontlis'  notice,  together  with  a  copy  of  the 
certificate  and  the  name  of  the  holder,  does  not  impair  the  obli- 
gation of  the  contract  evidenced  by  the  certificate.' 

It  is  one  of  the  contingencies  to  which  parties  look  now  in 
making  contracts  that  they  may  be  affected  in  many  ways  by 
State  and  national  legislation.  For  such  legislation,  demanded 
by  the  public  good,  however  it  may  rctroact  on  contracts  previ- 
ously made,  and  enhance  the  cost  and  difficulty  of  performance, 
or  diminish  the  value  of  such  performance  to  the  other  party, 
there  is  no  restraint  in  the  Federal  constitution,  so  long  as  the 
obligation  of  performance  remains  in  full  force.^ 

Hence,  a  law  relieving  a  debtor  from  imprisonment  for  debt 
does  not  impair  the  obligation  of  contract,  because  it  is  only  a 
modification  of  the  remedy  given  by  the  legislature  for  the  en- 
forcement of  the  contract,  and  not  a  part  of  the  obligation.® 
And  a  retroactive  effect  is  not  given  to  a  statute  making  com- 
binations in  restraint  of  trade  illegal,  by  applying  the  statute 
to  a  continuation,  after  its  passage,  of  a  pre-existing  contract." 

1. 

§  558.  Exemptions. — Exemption  laws  operate  on  the  remedy 

for  a  breach  of  contracts,  and  the  legislature  has  the  power  to 
change  them  according  to  its  own  views  of  policy  so  as  to  affect 
the  remedy  upon  existing  contracts,  but  not  to  the  extent  of 
rendering  it  nugatory  and  impracticable.'''  It  is  constitutionally 
competent  for  the  legislature  to  determine  the  amount  of  prop- 
erty that  shall  be  exempt  from  seizure  or  sale  for  the  payment  of 
any  debt  or  liability,  and  to  increase  and  diminish  such  amount 

7.  Curtis  V.  Whitney,  13  Wall.  Fisher  v.  Lackey,  6  Black  (Ind.), 
(U.  S.)  68.  See,  also,  United  373;  Penniman's  Case,  103  U.  S. 
States  V.  Freight  Asso.,  IGG  U.  S.  714;  Brunson  v.  Newbury,  2  Doug. 
290,  17  S.  Ct.  540.  (Mich.)   38. 

8.  Curtis  V.  Whitney,  13  Wall.  10.  United  States  v.  Freight 
(U.  S.)    68.                                                  Asso.,  166  U.  S.  290,  17  S.  Ct.  540. 

9.  Sturges  v.  Crowninshield,  4  1.  Stephenson  v.  Osborne,  41 
Wheat.  (U.  S.)  122;  Mason  v.  Miss.  119,  90  Am.  Dec.  358  and 
Haile,  12  Wheat.  (U.S.)  370;  Ed-  note;  Morse  v.  Goold,  11  N.  Y.  281, 
wards  v.  Kearzey,    96    U.    S.    595;  62  Am.  Dec.  103. 

629 


§§    558-560  OPERATION    OF    CONTRACTS.  Ch.    18 

from  time  to  time,  bnt  it  cannot  in  its  exemption  laws  discrim- 
inate between  different  classes  of  creditors  and  kinds  of  debts.^ 
If  the  law  is  reasonable,  it  applies  to  past  as  well  as  to  future 
contracts.^  It  has  been  held  that  a  homestead  exemption  given 
bj  the  constitution  can  be  maintained  by  the  debtor  as  against 
a  judgment  rendered  before  the  adoption  of  the  constitution, 
where  no  such  exemption  existed,^  provided  it  is  reasonable. 
But  if  such  exemption  had  been  excessive  and  unreasonable  as 
applies  to  obligations  existing  prior  to  the  adoption  of  the  con- 
stitution, it  will  be  declared  unconstitutional  and  void.^ 

§  559.  Limitations. — The  law  of  limitations  is  not  consid- 
ered a  part  of  the  contract ;  hence,  the  legislature  may  enact  a 
law  limiting  the  time  within  which  actions  may  be  brought  to 
enforce  demands  where  there  was  before  no  period  of  limita- 
tion, or  may  shorten  the  existing  time  of  limitation ;  and  such 
a  law  may  operate  upon  existing  contracts,  as  it  does  not  come 
under  the  constitutional  prohibition.^ 

§  560.  Abolishing  remedy. — Where  the  act  merely  modifies 
the  remedy  or  gives  another  in  its  place,  for  enforcing  contracts, 
it  does  not  conflict  with  the  Federal  constitution.  So  the  right 
to  distrain  for  suit  may  be  abolished,  and  such  law  applies  to 
leases  in  existence  when  the  act  was  passed.^ 

And  so  a  law  subsequently  enacted  may  deprive  a  creditor, 
under   certain   circumstances,    of  his   remedy   by   attachment, 

2.  Coleman  v.  Ballandi,  22  Minn.  5.  Edwards  v.  Kearzey,  9G  U.  S. 
144;  Tuttle  v.  Stout,  7  Minn.  465,       595. 

82  Am.  Dec.  108  and  note;  Cogel  v.  6.  Sturges    v.    Crowninshield,     4 

Mickow,  11  Minn.  475.  Wheat.    (U.    S.)    122;    Hawkins   v. 

3.  Taylor  v.  Stockwell,  66  Ind.  Barney,  5  Pet.  (U.  S.)  457;  Smith 
505;  Rockwell  v.  Hubbell,  2  Doug.  v.  Morrison,  22  Pick.  (Mass.)  430; 
(Mich.)    197,  45  Am.  Dec.  246  and  Call  v   Hagger,  8  Mass.  423;  Smith 

note;    Sneider   v.    Heidelberger,    45  v.  Packard,  12  Wis.  371;  Kenyon  v. 

Ala.  126;  Hardeman  v.  Donovan,  39  Stewart,  44  Pa.  St.  179. 

Ga.  425.  1.  Stocking  v.  Hunt,  3  Denio  (N. 

4.  Cusic  V.  Douglas,  3  Kan.  123,  Y.),  274;  Conkey  v.  Hart,  14  N.  Y. 
87   Am.   Dec.   458    and   note.     This  22. 

case  is  undoubtedly  carried  too  far. 

630 


CTl.    18  IMPAIRMENT    OF    OBLIGATION.  §    560 

which  existed  in  full  force  when  the  contract  was  made.^  A 
creditor  of  an  assigning  debtor  acquires  no  vested  right  in  the 
assets  by  means  of  the  assignment.  The  assignee  is  the  agent 
of  the  law,  and  all  the  proceedings  in  the  future  settlements 
of  the  assets  are  subject  to  the  law  of  the  legislature.^ 

An  act  providing  that  in  foreclosure  proceedings  thereafter 
commenced  no  personal  judgment  should  be  taken  is  valid  as 
to  past  contracts,  the  remedy  by  action  at  law  for  the  deficiency 
being  still  left.*  So  a  law  is  valid  which  provides  that  no  civil 
process  should  issue  or  be  enforced  against  any  person  in  the 
military  service  of  the  State  or  the  United  States;  and  it  ap- 
plies to  a  writ  of  scire  facias  upon  a  mortgage,  unless  expressly 
prohibited  by  the  act  of  the  contracting  parties,  and  is  not  un- 
constitutional as  impairing  the  obligation  of  contracts."* 

Legal  remedies  are  in  the  fullest  sense  under  the  rightful 
control  of  the  legislature  of  the  several  States,  notwithstanding 
the  provision  in  the  constitution  of  the  United  States  prohibit- 
ing the  impairment  of  the  obligation  of  contracts;  and  it  is  no 
valid  objection  to  legislation  on  that  subject,  that  the  substi- 
tuted remedy  is  less  beneficial  to  the  creditor  than  the  one  which 
existed  at  the  time  the  debt  was  contracted.^ 

The  legislature  may  change  and  modify  remedies,  forms  of 
proceedings,  and  the  tribunal  itself,  but  it  shall  not  directly  or 
indirectly  destroy  or  abolish  all  remedy  whatever,  by  which  the 
contracts  are  to  be  enforced.'' 

An  adequate  and  reasonable  mode  of  enforcing  the  right  must 
remain,  or  be  provided,  which  leaves  the  value  of  the  contract 

2.  Bigelow  V.  Pritchard,  21  Pick.  6.  In  re  Mechanics  and  Farmers' 
(Mass.)   169.  Bank,   31   Conn.   63;   Wolff  v.   New 

3.  In  re  Mechanics  and  Farmers'  Orleans,  103  U.  S.  358;  Penrose  v. 
Bank,  31  Conn.  63.  Canal   Co.,   56   Pa.   St.   46,   93   Am. 

4.  Newark  Sav.  Inst.  v.  Forman,  Dec.  778;  Simpson  v.  Bank,  56  N. 
33  N.  J.  Eq.  436.  H.  466,  22  Am.  Rep.  491. 

5.  Coxe  V.  Martin,  44  Pa.  St.  7.  Richardson  v.  Cook,  37  Vt. 
322.  See,  also,  Evans  v.  Montgom-  599,  88  Am.  Dec.  622;  Baldwin  v. 
ery,  4  Watts  &  S.  (Pa.)  218;  Van  Newark,  38  N.  J.  L.  158;  McMillan 
Rensselaer  v.  Hayes,  19  N.  Y.  68,  75  v.  Sprague,  4  How.  (Miss.)  647,  35 
Am.  Dec.   278  and  note:   Wason  v.  Am.  Dec.  412. 

Railroad  Co.,  47  N.  Y.  157. 

631 


§§    560,  561  OPEKATION    OF    CONTEACTS.  Ch.    18 

without  substantial  depreciation  or  impairment.^  Therefore 
the  legislature  may  modify  or  change  existing  remedies  or  pre- 
scribe new  modes  of  procedure,  without  impairing  the  obliga- 
tion of  contracts,  provided  a  substantial  or  efficacious  remedy 
remains  or  is  given  by  means  of  which  a  party  can  enforce  his 
rights  under  the  contract.^ 

§  561.  Redemption  from  sales  of  real  estate. — A  law  made 
after  the  date  of  a  contract,  which  gives  a  more  speedy  and  effi- 
cacious remedy  to  the  creditor,  is  not  unconstitutional.  It  is 
only  where,  by  a  change  of  the  remedy,  the  obligation  of  the 
contract  is  impaired  that  the  constitution  is  violated.^ 

The  collection  laws  existing  when  a  contract  is  made  are  no 
part  of  the  contract,  and  give  the  debtor  no  vested  right.^  But 
a  sale  of  real  estate  under  a  judgment  rendered  before  a  stat- 
ute is  enacted,  should  conform  to  the  law  in  force  at  the  time 
the  judgment  was  rendered.^ 

The  right  to  acquire  a  lien  upon  real  estate  by  judgment, 
and  the  right  to  sell  real  estate  upon  execution,  are  derived 
from  the  statute.  These  are  rights  altogether  outside  of  the 
creditor's  contract.  A  creditor,  even  though  he  may  have  re- 
duced his  claim  to  judgment,  has  no  contractual  interest  or 
estate  in  his  debtor's  land.^ 

8.  Loekett  v.  Usry,  28  Ga.  345 j  ginia,  172  U.  S.  102,  19  S.  Ct.  134; 

Read  v.  Bank,  23  Me.  318;  White  v.  Oskosh  Water  Works  Co.  v.  Oskosh, 

Hart,  13  Wall.   (U.  S.)   646;  Davis  187  U.  S.  437,  23  S.  Ct.  234;  Vance 

V.  Rupe,  114  Ind.  588,  17  N.  E.  163;  v.   Vance,   108   U.   S.   514,   2   S.   Ct. 

Lessley    v.    Phipps,    49    Miss.    790;  854. 

Planters'    Bank   v.    Sharp,   6    How.  1.  Blair     v.     Williams,     4     Litt. 

(U.   S.)    301;   Taylor  v.   Stockwell,  (Ky.)    34;    Lapsley  v.   Brashear,  4 

66   Ind.   505;    Stocking  v.  Hunt,   3  Litt.  (Ky.)  47;  Sturges  v.  Crownin- 

Denio    (N.   Y.),   274;    Tennessee  v.  shield,  4  Wheat.   (U.  S.)   122.  Com- 

Sneed,   96   U.   S.   69;    Newark   Sav.  pare  Cargill  v.  Power,  1  Mich.  370. 

Inst.  V.  Forman,  33  N.  J.  Eq.  436;  2.  Grubbs     v.     Harris,     1     Bibb 

Morse  v.  Gould,   11   N.  Y.   281,   62  (Ky.),   567;    Reardon  v.   Searcy,   2 

Am.  Dec.  103;  Edwards  v.  Kearzey,  Bibb   (Ky.),  202. 

96  U.  S.  595.  3.  Holland  v.  Dickerson,  41  Iowa, 

9.  Green  v.  Biddle,  8  Wheat.   (U.  367. 

S.)    1;    Bronson   v.   Kinzie,   1   How.  4.  Gimbel  v.  Stalte,  59  Ind.  446; 

(U.   S.)    317;    McCullough  v.    Vir-  Iverson  v.  Shorter,  9  Ala.  713;  Ber- 

632 


Cll.    18  IMPAIRMENT    OF    OBLIGATION.  §§    561,  562 

The  rights  and  remedies  given  by  statute  are  not  secured  by 
contract,  and  the  creditor  stands  wholly  upon  the  law  which 
gives  him  the  remedy  for  the  collection  of  his  debt.  Having 
contracts  for  no  specific  lien  or  remedy,  the  creditor  agrees,  in 
effect,  that  he  will  take  the  remedy  as  he  may  find  it,  subject 
only  to  the  condition  that  it  shall  be  reasonably  adequate  to 
make  his  contract  effectual  by  legal  compulsion,  and  such  as 
other  creditors  in  like  circumstances  are  entitled  to  by  the  laws 
of  the  land.^ 

§  562.  Specific  liens. — Where  the  creditor  has  acquired  a 
specific  lien  upon  or  interest  in  property  by  contract,  his  rights 
in  the  specific  property  are  then  contractual,  and  it  is  not  com- 
petent for  the  legislature  to  interpose  in  behalf  of  the  debtor, 
and,  by  enlarging  his  rights,  or  by  modifying  the  rights  of  the 
creditor,  to  impair  or  depreciate  the  value  of  an  antecedent  debt 
or  security.  So  the  vendible  value  of  the  estate  or  interest  of 
a  mortgagee,  or  other  holder  of  a  specific  lien  upon  real  estate, 
cannot  be  materially  affected  or  appreciably  diminished  by  an 
act  of  the  legislature  which  rendered  consummate  the  prior  in- 
choate right  of  a  married  woman  in  the  real  estate  of  her  hus- 
band.^ 

Likewise  a  redemption  law,  the  effect  of  which  is  to  depre- 
ciate the  value  of  an  antecedent  security,  existing  by  way  of 
mortgage,  or  which  changes  the  character  of  the  estate  which 
passes  by  sale  under  a  power  contained  in  the  mortgage,  cannot 
be  upheld.^  And  the  security  or  danger  clause  in  a  chattel 
mortgage  is  a  contract  right  and  cannot  be  nullified  by  subse- 
quent legislation.^ 

thold  V.  Fox,  13  Minn.  501,  97  Am.  1.  PLelphenstine   v.   Heredith,   84 

Dec.  243;   Thorn  v.  San  Francisco,  Ind.  1;   Buser  v.  Shepard,  107  Ind. 

4  Cal.  127;  Watson  v.  Railroad  Co.,  417,  8  N.  E.  280. 

47  N.  Y.  157;  Moore  v.  Martin,  38  2.  Codington  v.   Bispham,   36   N. 

Cal.  428;   Butler  v.  Palmer,  1  Hill  J.  Eq.  574;   Hillebert  v.  Porter,  28 

(N.  Y.),  324;    Davis  v.  Rupe,   114  Minn.  496,  11  N.  84. 

Ind.  588,  17  N.  E.  163.  3.  Boice  v.  Boice,  27  Minn.  371, 

5.  Davis  V.   Rupe,   114   Ind.   588,  7  N.  687. 
17  X.  E.  163. 

633 


§§  562,563 


OPERATION    OF    CONTKACTS. 


Ch.    18 


So  the  law  in  force  at  the  time  a  mortgage  is  executed  gives 
the  mortgagee  a  specific  lien  upon  the  mortgaged  premises. 
The  remedy  to  redeem  provided  when  the  mortgage  is  executed 
enters  into  the  convention  of  the  parties,  in  so  far  that  any 
change  by  the  legislature  which  affects  it  substantially  to  the 
injury  of  the  mortgage,  is  a  law  impairing  the  obligation  of 
contracts  within  the  meaning  of  the  constitution  of  the  United 
States.* 

§  563.  Changing  rate  of  interest  on  judgment. — One  line  of 
decisions  holds  that  the  constitutional  prohibition  does  not  for- 
bid a  State  from  legislating,  within  its  discretion,  to  reduce 
the  rate  of  interest  upon  judgment  previously  obtained  in  its 
courts ;  as  the  judgment  creditor  has  no  contract  whatever  in 
that  respect  with  the  judgment  debtor,  and  as  the  former's  right 
to  receive,  and  the  latter's  obligation  to  pay  exist  only  as  to 
such  amount  of  interest  as  the  State  chooses  to  prescribe  as  a 
penalty  or  liquidated  damages  for  the  nonpayment  of  the 
judgment.^ 

But  other  decisions  hold  the  contrary,  because  the  effect  of 
a  judgment  is  to  fix  the  rights  of  the  parties  thereto  by  the 
solemn  adjudication  of  a  court  having  jurisdiction,  and  such 
rights  cannot  be  affected  by  subsequent  legislation.  Changing 
the  rate  of  interest  does  not  affect  existing  contracts  or  debts 
due  prior  to  such  enactment,  whether  they  are  evidenced  by 
statute,  by  judgment,  or  by  agreement  of  the  parties.  The 
parties'  rights  are  fixed  by  the  judgment  of  the  court  and  the 
judgment  carries  with  it  its  incidents,  equally  determined  and 
all  relating  to  the  date  of  its  entry ;    and,  hence,  the  interest  on 


4.  Pingrey     on     Mortg.      2138 
Baldwin  v.  Flagg,  43  N.  J.  L.  495 
Robards    v.    Brown,    40    Ark.    423 
Allen  V.  Allen,  95  Cal.   184,  30   P, 
213;    Phinney   v.   Phinney,    81    Me 


V.  Bugbee,  24  How.  (U.  S.)  461; 
Champion  v.  Hinkle,  45  N.  J.  Eq. 
162,  16  A.  701;  Gunn  v.  Barry,  15 
Wall.   (U.  S.)  610. 

5.  Morley  v.    Railroad   Co.,    146 


450,  17  A.  405,  4  L.  R.  A.  348  and        U.   S.   162,   13   S.   Ct.   54,   affirming 
note,  16  Am.  St.  Rep.  266;  Howard        O'Brien  v.  Young,  95  N.  Y.  428. 


634 


Cll.    18  IMPAIRMENT    OF    OBLIGATION.  §§    563-565 

a  judgment  cannot  be  reduced.®  And  it  is  of  no  consequence 
that  the  judirnient,  although  calling  for  interest  on  the  amount 
adjudged,  did  not  specify  the  rate.  The  statute,  then  in  force, 
fixed  the  rate,  as  the  interest  upon  a  judgment,  secured  by  posi- 
tive law,  is  as  much  a  part  of  the  judgment  as  if  expressed 
in  it.^ 

§  564.  Reducing  rate  of  interest  in  redemption. — The  pur- 
chaser at  a  decretal  sale  is  entitled  to  interest  at  the  rate  pre- 
scribed by  the  statute  when  he  purchased ;  and  this  rule  is  ap- 
plicable to  all  decretal  sales  of  mortgaged  premises  thereafter 
made,  although  the  mortgage  was  given  before  the  passage  of 
the  act.  Such  a  reduction  in  the  rate  of  interest  does  not  im- 
pair the  obligation  of  contracts  between  mortgagor  and  mort- 
gagee, because  the  subsequent  statute  does  not  diminish  the  duty 
of  the  mortgagor  to  pay  what  he  agreed  to  pay,  or  shorten  the 
period  of  payment,  or  affect  any  remedy  which  the  mortgagee 
had,  by  existing  law,  for  the  enforcement  of  his  contract.^ 

§  565.  Change  of  procedure. — ^Where  the  change  in  the  pro- 
cedure to  collect  debts  does  not  materially  affect  the  obligation 
it  will  be  upheld.  Thus,  where  the  stockholders  of  a  company 
are  made  jointly  and  severally  liable  for  all  debts  of  the  com- 
pany until  the  whole  amount  is  paid,  a  subsequent  statute  may 
change  the  right  to  proceed  as  specified  in  the  original  statute, 
'and  provide  that  all  proceedings  to  enforce  the  liability  of  a 
stockholder  for  the  debts  of  the  company  shall  be  either  by  suit 
in  equity  or  by  an  action  of  debt  upon  the  judgment  obtained 
against  the  company  or  corporation,  notwithstanding  the  fact 
that  creditors  were  delayed.^ 

6.  Cox  V.  Mailatt,  36  N.  J.  L.  129  Ind.  217,  26  N.  E.  899,  29  N.  E. 
389,  and   cases  cited,   13  Am.   Rep.        781,  15  L.  R.  A.  68  and  note. 

454.  1.  Oshkosh  Water  Works  Co.  v. 

7.  Amis  V.  Smith,  16  Pet.  (U.  Oshkosh,  187  »J.  S.  437,  23  S.  Ct. 
S.)   303,  311.  234;    McCullough   v.   Virginia,    172 

8.  Conn.  Mut.  L.  etc.  Insurance  U.  S.  102,  19  S.  Ct.  134;  Fourth 
Co.  V.  Cushman,  108  U.  S.  51,  2  S.  Nat.  Bank  v.  Francklyn,  120  U.  S. 
Ct.  236;   Robertson  v.  Van  Cleave,  747,  7  S.  Ct.  757. 

635 


§§    565,  566  OPERATION    OF    CONTRACTS.  Ch.    18 

But  a  statute  which  provides  that  a  sale  shall  not  be  made 
of  property  levied  on  under  an  execution,  unless  it  shall  bring 
two-thirds  of  its  valuation  according  to  the  opinion  of  three 
householders,  is  unconstitutional,  because  any  law  in  its  ope- 
ration amounts  to  a  denial  or  obstruction  of  the  rights  accruing 
by  a  contract,  though  professing  to  act  only  on  the  remedy. 
This  subsequent  law  impairs  the  obligation  of  the  contract,  by 
superadding  a  condition  that  there  shall  be  no  sale  for  any  sum 
less  than  the  value  of  the  property  levied  on,  to  be  ascertained 
by  appraisement,  or  any  other  mode  of  valuation  than  a  public 
sale,  and  affects  the  obligation  of  the  contract,  for  it  can  be 
■enforced  only  by  a  sale  of  the  defendant's  property,  and  the 
prevention  of  such  sale  is  the  denial  of  a  right.^ 

So  a  statute  authorizing  redemption  of  mortgaged  property 
in  two  years  after  the  sale  under  a  decree,  by  bona  fide  creditors 
of  the  mortgagor,  is  unconstitutional  and  void  as  to  sales  made 
under  mortgages  executed  prior  to  the  enactment.^  And  so 
where  a  State  gives  a  time  for  redemption  to  mortgage  sales, 
the  United  States  courts  must  follow  such  law  and  allow  the 
mortgagor  the  prescribed  time  to  redeem.* 

§  566.  Extending  the  period  of  redemption. — ^Whatever  be- 
longs merely  to  the  remedy  may  be  altered  according  to  the  will 
of  the  State,  provided  the  alteration  does  not  impair  the  obliga- 
tion of  the  contract.  But  if  the  obligation  is  impaired,  it  is 
immaterial  whether  it  is  done  by  acting  on  the  remedy  or  di- 
rectly on  the  contract  itself.  In  either  case  it  is  prohibited  by 
the  constitution.^  Where  the  subsequent  statute  does  not  act 
upon  the  remedy  but  directly  upon  the  contract  itself,  and  adds 
a  new  condition  injurious  and  unjust  to  the  mortgagee,  it  is 
unconstitutional.  Thus,  when  the  subsequent  statute  declares 
that  the  equitable  estate  of  the  mortgagor  after  breach  shall 

2.  McCracken  v.  Hayward,  2  4.  Brine  v.  Ins.  Co.,  96  U.  S.  627, 
How.    (U.  S.)    608.                                       637. 

3.  Howard  v.  Bugbee,  24  How.  1.  Bronson  v.  Kinzie,  1  How.  (U. 
(U.  S.)  461.  See,  also,  Bronson  v.  S.)  311;  Green  v.  Biddle,  8  Wheat. 
Kinzie,  1  How.    (U.  S.)    311.                    (U.  S.)   75. 

636 


Cll.    18  IMPAIRMENT    OF    OBLIGATION.  §§    566,  567 

continue  twelve  months  after  the  sale,  a  right  which  is  added  to 
the  original  contract  by  legislation,  the  statute  is  void  as  im- 
pairing the  obligation  of  contract.^  So  a  subsequent  statute 
which  authorizes  the  redemption  of  property  sold  upon  fore- 
closure of  a  mortgage,  where  no  right  of  redemption  previously 
existed,  or  which  extends  the  period  of  redemption  beyond  the 
time  formerly  allowed,  is  unconstitutional  as  applied  to  a  sale 
under  a  mortgage  executed  before  its  passage.^ 

The  law  subsequently  cannot  carve  out  for  the  mortgagor  or 
the  owner  of  the  mortgaged  property  an  estate  of  several  months 
more  than  was  obtainable  by  him  under  the  former  law,  with 
full  right  of  possession,  and  without  paying  rent  or  accounting 
for  profits  in  the  meantime.  What  is  sold  under  the  subsequent 
act  is  not  the  estate  mortgaged,  but  an  estate  subject  to  the  pos- 
session, for  the  time  extended,  of  another  person  who  is  under  no 
obligation  to  pay  rent  or  to  account  for  profits,  and  the  act  there- 
fore impairs  the  obligation  of  contract,  and  is  void/ 

§  567.  Resale  when  bought  by  mortgagor  for  less  than  the 
debt. — A  statute  providing  that  property  once  sold  under  a 
mortgage  foreclosure  shall  not  be  resold  if  bought  by  the  mort- 
gagor for  less  than  the  debt,  to  satisfy  the  unpaid  part  of  the 
debt,  is  void  as  to  mortgages  executed  before  the  law  was  en- 
acted. Such  a  change  in  the  law  is  not  merely  the  substitution 
of  one  remedy  for  another,  but  is  a  substantial  impairment  of 
the  rights  of  the  mortgagee,  as  expressed  in  the  contract,  and  is 
unconstitutional.^ 

2.  Bronson  v.  Kinzie,  1  How.  (U.  4.  Barnitz  v.  Beverly,  163  U.  S. 
S.)  311.  See,  also,  McCracken  v.  118,  16  S.  Ct.  1042;  Howard  v. 
Hayward.  2  How.  (U,  S.)  608;  Bugbee,  24  How.  (U.  S.)  461 ;  Green- 
Howard  V.  Bugbee,  24  How.  (U.  S.)  wood  v.  Butler,  52  Kan.  424,  34  P. 
461.  967,  22  L.   R.  A.  465;    Watkins  v. 

3.  Barnitz  v.  Beverly,  163  U.  S.  Glenn,  55  Kan.  417,  40  P.  316; 
118,  16  S.  Ct.  1042,  overruling  Bev-  State  v.  Gilliam,  18  ]\Iont.  94,  45 
erly  v.  Barnitz,  55  Kan.  461,  42  P.  P.  661,  overruling  same  case,  44  P. 
725,  and,  in  effect,  overruling  State  394,  33  L.  R.  A.  556. 

V.   Sears,  29  Oreg.  580,  43   P.   482,  1.  Barnitz  v.  Beverly,   163  U.  S. 

46   P.   785.   54   Am.   St.   Rep.    808;        118,  16  S.  Ct.  1042. 
Van  Baunibach  v.  Bade,  9  Wis.  559, 
76  Am.  Dec.  283. 

637 


§  567 


OPERATION    OF    CONTRACTS. 


Ch.   18 


But  if  the  law  was  in  force  when  the  mortgage  was  exe- 
cuted it  will  apply.  Thus,  many  statutes  declare  that  the  sale 
on  a  judgment  or  decree  exhausts  it  as  to  the  property  sold, 
and  the  judgment  creditor  cannot,  after  redemption  by  a  jun- 
ior encumbrancer,  resell  the  land  to  enforce  payment  of  an 
unsatisfied  part  of  the  judgment  or  decree.^ 

The  object  of  the  law  is  to  compel  creditors  to  bid  a  fair 
and  adequate  price  for  the  debtor's  property,  and  to  prevent 
them  from  bidding  a  small  sum,  and,  in  the  event  of  a  redemp- 
tion, again  subject  the  property  to  sale.  The  policy  of  the 
law  is  to  prohibit  the  creditor  from  selling  the  property  more 
than  once  for  his  own  benefit,  and  to  secure  a  just  and  fair 
price  for  the  property  in  the  first  instance.' 


2.  Horn  v.  Bank,  125  Ind.  381,  25 
N.  E.  558,  9  L.  R.  A.  676,  21  Am. 
St.  Rep.  231  and  note;  Anderson  v. 
Anderson,  129  Ind.  573,  29  N.  E. 
35,  28  Am.  St.  Rep.  211;  Green  v. 
Stobo,  118  Ind.  332,  20  N.  E.  850; 
Hervey  v.  Krost,  116  Ind.  268,  19 
N.  E.  125;   Simpson  v.  Castle,  52 


Cal.  644;  People  v.  Eastern,  2 
Wend.  (N.  Y.)  298;  Russell  v. 
Allen,  10  Paige  (N.  Y.),  249;  Clay- 
ton V.  Ellis,  50  Iowa,  590. 

3.  Anderson  v.  Anderson,  129 
Ind.  573,  29  N.  E.  35,  28  Am.  St. 
Rep.  211. 


638 


P^RT  V^. 


TERMINATION  OF  CONTRACTS. 


(639) 


PART  A^. 

CHAPTER  XIX. 

Impossible    Contracts. 


ARTICLE  I. 

Discharge  by  Impossibility  of  Conteact. 

Section  568.  Impossible. 

569.  Difficulty  and  Hardship. 

570.  Condition  Precedent. 

571.  Nonexistence  of  Subject-Matter. 
672.  Subject-Matter  Ceasing  to  Exist. 

573.  Impossibility  of  Performing  a  Contract  Subsequently  Arising- 

574.  In  Commercial  Transactions. 

575.  Bailment  of  an  Article  to  Be  Repaired. 

576.  Excused  by  Act  of  Law. 

577.  Two  Ways  of  Performance. 

578.  Judgments  and  Other  Judicial  Processes. 

579.  Promisee  Preventing  Performance. 

§  568.  Impossible. — Every  person  who,  in  consideration  of 
some  advantage  either  to  himself  or  to  another  person,  prom- 
ises a  benefit,  must  have  the  power  of  conferring  that  benefit 
up  to  the  existence  to  which  that  benefit  professes  to  go,  and 
that  not  only  in  fact  but  in  law;  that  is,  the  thing  to  be  done 
should,  in  itself,  be  legal,  and  the  party  by  whom  the  promise 
is  made  should  have  the  power  of  carrying  it  into  effect.  If 
these  conditions  do  not  exist,  the  undertaking  has  no  elements 
of  a  contract  and  is  therefore  of  no  avail  to  either  party.^ 

It  is  elementary  law  that  when  the  contract  is  to  do  a  thing 

1.  Nerot  V.  Wallace,  3  Term  R. 
17. 

641 


§  568  TERMINATION  OP  CONTEACTS.  Ch.  19 

wliich  is  possible  in  itself,  the  promisor  will  be  liable  for  a 
breach  thereof,  notwithstanding  it  was  beyond  his  power  to 
perform  it,  for  it  was  his  own  fault  of  running  such  risk  of 
undertaking  to  perform  an  impossibility,  when  he  may  have 
provided  against  it  by  his  contract.  But  where  from  the  nature 
of  the  covenant  it  is  apparent  that  the  parties  contract  on  the 
basis  of  a  continued  existence  of  a  given  person  or  thing,  con- 
dition is  implied  that  if  the  performance  becomes  impossible, 
from  the  perishing  of  the  person  or  thing  that  shall  excuse  such 
performance.^ 

And  if  the  performance  of  a  condition  be  prevented  by  the 
party  entitled  to  take  advantage  of  a  breach,  this  excuses  the 
performance.^ 

If  the  thing  is  only  improbable,  or  out  of  the  power  of  the 
promisor,  it  is  not  in  law  deemed  impossible.^  Impossibility 
does  not  mean  anything  more  than  a  prima  facie  legal  impos- 
sibility or  physical  impossibility  according  to  the  state  of  knowl- 
edge of  the  period.^  The  contract  may  be  either  impossible  at 
law  or  in  fact.^  So  where  there  is  obvious  physical  impossi- 
bility, or  legal  impossibility,  which  is  apparent  on  the  face  of 
the  contract,  the  contract  is  void.^  Where  a  contract  shows  that 
it  is  based  on  certain  facts  which  have  no  existence,  the  con- 
tract is  invalid.* 

The  principle  deducible  from  the  authorities  is  that,  if  what 
is  agreed  to  be  done  is  possible  and  lawful,  it  must  be  done. 
Difficulty  or  improbability  of  accomplishing  the  understanding 
will  not  avail  the  defendant.     It  must  be  shown  that  the  thing 

2.  Walker  v.  Tucker,  70  111.  524.  5.  Cliftord  v.   Watts,  L.  R.   5  P. 

3.  Whitney    v.    Spencer,    4    Cow.        C.  588. 

(N.  Y.)    39;   Carpenter  v.   Stevens,  6.  Harvey    v.    Gibbons,    2    Lev. 

12   Wend.    (N.  Y.)    589;    People  v.  161;  James  v.  Morgan,  1  Lev.  Ill; 

Bartlett,  3  Hill   (N.  Y.),  370;  Wil-  Thornborow    v.    Whiteacre,    2    Ld. 

liams  V.  Bank,  2  Pet.    (U.  S.)    97;  Raym.  1164. 

Holme   V.    Guppy,   3   IMees.   &   We1.  7.  Jacksonville,    etc.    Railway   v. 

387.  Hooper,    160   U.    S.   514,    16   S.   Ct. 

4.  Clifford  v.  Watts,  L.  R.   5  C.  379. 

P.     588;     Beebe     v.     Johnson,     19  8.  Nordyke   v.   Kehlor,    155    Mo. 

Wend.  (N.  Y.)  500,  32  Am.  Dec.  643,  56  S.  W.  287,  78  Am.  St.  Rep. 
518. 

642 


Ch.    19  IMPOSSIBLE    CONTRACTS.  §§    568,  569 

cannot  by  any  means  be  effected.     ISTotbing  sbort  of  this  will 
excuse  nonperformance.^ 

The  general  rule  is  that  where  an  impossibility  exists  as  to 
the  performance  of  the  contract,  which  is  known  to  the  prom- 
isor but  not  to  the  promisee,  the  former  is  liable  in  damages 
for  failure  to  perform.  Thus,  where  a  telegraph  company  ac- 
cepts a  message  for  transmission,  but  knows  that  its  lines  are 
down  and  the  message  cannot  be  sent,  it  is  liable  in  damages  to 
the  party  who  gave  the  dispatch,  he  not  being  informed  of  the 
impossibility.  ^° 

§  569.  Difficulty  and  hardship. — If  what  is  agreed  to  be  done 
is  possible  and  lawful,  it  must  be  done.^  Difficulty  or  improb- 
ability of  accomplishing  the  undertaking  will  not  avail  the  de- 
fendant. It  must  be  shown  that  the  thing  cannot  by  any  means 
be  effected.  ISTothing  short  of  this  will  excuse  nonperformance.^ 
The  answer  to  the  objection  of  hardship  in  all  such  cases  is  that 
it  might  have  been  guarded  against  by  a  proper  stipulation. 

It  is  the  province  of  the  court  to  enforce  contracts,  not  to 
make  or  modify  them.  Where  there  is  neither  fraud,  accident, 
nor  mistake,  the  exercise  of  dispensing  power  is  not  a  judicial 
function.^ 

Impossible  conditions  cannot  be  performed ;  and  if  a  person 
contracts  to  do  what  at  the  time  is  absolutely  impossible,  the 
contract  will  not  bind  him,  because  no  man  can  be  obliged  to 
perform  an  impossibility.  But  where  the  contract  is  to  do  a 
thing  which  is  possible  in  itself,  the  performance  is  not  excused 

600;     Gardner    v.    Lane,    d    Allen  2.  Beebe    v.    Johnson,    19    Wend. 

(Mass.),  492.  (X.    Y.)     500,    32    Am.    Dec.    518; 

9.  The    Harriman,    9    Wall.     ( U.  Kitzinger  v.  Sanborn,  70  111.  146. 
S.)   172,  19  L.  Ed.  633.  3.  The   Harriman,    9    Wall.     (U. 

10.  Swan  V.  West.  U.  Tel.  Co.,  S.)  161.  See,  also.  Blight  v.  Page, 
127  Fed.  Rep.  730;  Fleischner  v.  3  Bos.  &  Pul.  295 ;  Barker  v.  Hodg- 
Pacific  Post.  Tel.  Co.,  55  Fed.  Rep.  son.  3  Maule  &  Sel.  271;  Mederas 
738,  60  Fed.  Rep.  899.  See  "  Impos-  v.  Hill,  8  Bing.  235;  Osgood  v. 
sible  Contracts." — 7  Western  Re-  Groning,  2  Camp.  466;  Lorillard 
serve  Law  Journal,  99.  v.  Palmer,   15  Johns.    (N.  Y. )    114. 

1.  Touteng   v.    Hubbard,    3    Bos. 
&  Pul.  300. 

643 


§§  669-5Y1        TERMINATION  OF  CONTBACTS.        Ch.  19 

by  the  occurrence  of  an  inevitable  accident,  or  other  contin- 
gency, although  it  was  not  foreseen  by  the  party,  nor  within  his 
control.^ 

§  570.  Conditions  precedent. — A  condition,  inserted  for  the 
benefit  of  the  party  chargeable  by  the  contract,  must,  in  order 
to  avoid  the  contract,  be  strictly  performed.^  But  where  a  con- 
dition, either  precedent  or  subsequent,  is  impossible  but  not 
unlawful,  it  only  is  void,  and  the  rest  of  the  contract  takes 
effect  or  is  enforceable  as  though  it  contained  no  condition.® 
If  the  condition  precedent  is  not  known  to  be  impossible  when 
the  contract  is  executed,  and  it  becomes  so  by  the  act  of  God, 
the  other  party  cannot  be  placed  in  default  for  this  cause.'^ 

§  571.  Non-existence  of  subject  matter. — If  the  contract  is 
made  concerning  a  thing  which  does  not  exist,  and  both  parties 
are  acting  in  good  faith,  the  contract  is  void,^  even  though  the 
subject-matter  of  the  contract  be  known  to  both  parties  to  be 
liable  to  a  contingency  which  may  destroy  it  immediately ;  yet 
if  the  contingency  has  already  happened,  the  contract  will  be 
void.^    And  this  rule  may  apply  to  a  contract  where  part  only 

4.  Jones  v.  United  States,  96  U.  v.  Tiden,  L.  R.  9  Q.  B.  446;  Gibson 
S.   24,   29;    Jacksonville,   etc.   Rail-       v.  Pelkie,  37  Mich.  380. 

way  V.  Hooper,   160  U.  S.  514,  16  9.  Hitchcock  v.  Giddings,  Daniel, 

S.  Ct.  379.  1;   Allen  v.  Hammond,  11  Pet.    (U. 

5.  Bruce  v.  Snow,  20  N.  H.  484;  S.)  63;  Daniel  v.  Mitchel,  1  Story, 
Oakley  v.  Morton,  1  Ker.  (N.  Y.)  C.  C.  172;  Miles  v.  Stevens,  3  Pa. 
25.  St.  21,  45  Am.  Dec.  621  and  note; 

6.  Merrill  v.  Bell,  6  Sm.  &  M.  Scruggs  v.  Driver,  31  Ala.  274; 
(Miss.)  730;  Hughes  v.  Edwards,  French  v.  Townes,  10  Gratt.  (Va.) 
9  Wheat.    (U.  S.)    489.  513;    Ketchum    v.    Catlin,    21    Vt. 

7.  Howell  v.  Knickerbocker  Ins.  191;  Anderson  v.  Amstead,  69  111. 
Co.,  44  N.  Y.  276,  4  Am.  Rep.  675;  452;  Bradford  v.  Chicago,  25  111. 
Mezell  V.  Burnett,  4  Jones  (N.  411;  Thompson  v.  Gould,  20  Pick. 
Car.),  249.  (Mass.)    134;  Silvernail  v.  Cole,  12 

8.  Suydam  v.  Clark,  2  Sand.  (N.  Barb.  (N.  Y.)  685;  Scioto  Brick 
Y.)  133;  Sherman  v.  Barnard,  19  Co.  v.  Pond,  38  Ohio  St.  65;  King 
Barb.  (N.  Y.)  291;  Hazard  v.  Ins.  v.  Doolittle,  1  Head  (Tenn.),  77; 
Co.,  1  Sumner,  C.  C.  218;  Couturier  Harrell  v.  De  Normandie,  26  Tex. 
v.  Hastie,  5  H.  L.  Cas.  673;   Smith  120;    Hopkins   v.    Hinkley,    61   Md. 

644 


Ch.  19  IMPOSSIBLE  CONTRACTS.        §§  571,  572 

of  the  subject-matter  is  not  in  existence,  thus  being  valid  in 
part  and  void  in  part.^° 

§  572.  Subject-matter  ceasing  to  exist. — But  there  is  such  a 
defense  as  an  impossibility  of  performance.  Instances  of  such 
a  defense  are  found  in  cases  where  the  subject-matter  of  the 
contract  had  ceased  to  exist,  as  where  there  was  a  contract  of 
sale  of  a  cargo  of  grain  supposed  by  the  parties  to  be  on  its  voy- 
age to  England,  but  which,  having  become  heated  on  the  voy- 
age, had  been  unloaded  and  sold.  This  contract  was  void  be- 
cause it  imputed  that  there  was  something  to  be  sold  and  pur- 
chased at  the  time  of  the  contract,  which  had  ceased  to  exist.^ 
So,  where  a  person  purchased  an  annuity  which,  at  the  time  of 
the  purchase,  had  ceased  to  exist  owing  to  the  death  of  the 
annuitant,  the  contract  was  void,  and  the  party  could  recover 
the  amount  paid  for  it.^  This  is  on  the  principle  that  the  par- 
ties had  been  mutually  mistaken  and  the  contract  no  longer 
remains.^ 

Where  the  continued  existence  of  a  thing  is  essential  to  the 
performance  of  the  contract,  its  destruction  ends  the  contract 
if  both  parties  are  not  in  fault.*  Thus,  a  lessor  of  a  hotel  cove- 
nanted with  the  lessee  that  the  latter  should  be  supplied  with 
water  from  a  spring  which  became  dry,  and  it  was  held  that 
the  contract  ceased.^  And  so,  where  a  music  hall,  after  being 
let,  was  consumed  by  fire,  before  the  day  of  performance,  the 
contract  ceases  and  the  lessor  is  not  liable.^ 

584;   Rogers  v.  Walsh,  12  Neb.  28,  4.  The  Tornado,  108  U.  S.  342,  2 

10  N.  467;  State  v.  Illyes,  87  Ind.  S.  Ct.  746;  Ward  v.  Vance,  93  Pa. 

405.  8t.  499 ;  Dexter  v.  Norton,  47  N.  Y. 

10.  Clifford  V.  Watts,.  L.  R.  5  C.  62,  7  Am.  Rep.  415;  Wells  v.  Cal- 

P.  577.  nan,    107    Mass.    514,    9    Am.    Rep. 

1.  Courturier  v.  Hastie,  5  H.  65;  Lord  v.  Wheeler,  1  Gray 
L.  Cas.  673;  Allen  v.  Hammond,  11  (Mass.),  282;  Gould  v.  Murch,  70 
Pet.   (U.  S.)  63.  Me.  288,  35  Am.  Rep.  325. 

2.  Strickland  v.  Turner,  7  5.  Ward  v.  Vance,  93  Pa.  St. 
Exch.   208.  499. 

3.  Taylor  v.  Caldwell,  3  Best  &  6.  Taylor  v.  Caldwell,  3  Best  & 
S.  826;    Walker  v.  Tucker,  70  111.  S.  826. 

527. 

645 


§§  572,  573        TERMINATION  OF  CONTEACTS.        Ch.  19 

And  so,  where  a  party  endeavored  to  put  machinery  into  a 
building  of  another,  and  the  structure  was  consumed  by  fire, 
no  liability  could  be  attached  to  the  owner  of  the  building,  and 
the  machinist  had  no  remedy  for  the  work  already  done.^ 

And  where  parties  paid  a  wife  certain  compensation  so  long 
as  she  remained  apart  from  husband,  the  death  of  the  husband 
put  an  end  to  the  contract.^  An  owner  of  a  stallion  insured 
the  mares  served  by  his  horse,  with  a  further  agreement,  that 
if  the  service  did  not  prove  effective,  a  free  service  should  be 
given  the  following  year.  Upon  this  condition,  if  the  stallion 
dies  before  the  second  year,  a  party  whose  mare  failed  to  be 
with  foal  the  first  year,  must  pay  for  the  service;^  because 
the  minds  of  the  parties  are  presumed  to  have  contemplated 
the  possible  destruction  of  the  property. 

§  573.  Impossibility  of  performing  a  contract  subsequently 
arising. — Impossibility  of  performing  a  contract,  arising  after 
the  making  of  it,  although  without  any  fault  on  the  part  of  the 
covenantor,  does  not  discharge  him  from  his  liability  under  it.^ 
Where  a  party  by  his  own  contract  creates  a  duty  or  charge 
upon  himself,  he  is  bound  to  make  it  good  if  he  may,  notwith- 
standing any  accident  by  inevitable  necessity,  because  he  might 
have  provided  against  it  by  his  contract.^ 

7.  Appleby  v.  Myers,  L.  K.  2  C.  25  Miss.  83;  Engster  v.  West,  35 
P.  651,  reversing  same  case  in  1  C.  La.  Ann.  119,  48  Am.  Rep.  232; 
P.  615.  Compare  Cleary  v.  SoMer,  Dermott  v.  Jones,  2  Wall.  (U.  S.) 
120     Mass.      210;      Richardson     v.  1. 

Shaw,  1  Mo.  App.  234.  2.  Paradine  v.  Jane,  Aleyn,  26; 

8.  Miller  v.  Woodward,  2  Beav.  Walton  v.  Waterhouse,  2  Wm. 
271.  Saund.  422,  a;  Brecknock  Company 

9.  Price  v.  Pepper,  13  Bush.  v.  Pritchard,  6  Term  R.  750;  Ford 
(Ky.)   42.  V.   Cotesworth,  L.  R.  4  Q.  B.   127; 

1.  Jacksonville,  etc.  Railroad  Co.  Kearson  v.   Pearson,   7   Hurl.  &  N. 

V.  Hooper,  IGO  U.  S.  514,  16  S.  Ct.  386;    Booth   v.   Mill   Co.,   60   N.   Y. 

379;   Paradine  v.  Jane,  Aleyn,  26;  487;    Stees   v.    Leonard,    20    Minn. 

Bunn  v.  Prather,  21  HI.  217;  School  494;   Kitzinger  v.  Sanborn,  70  111. 

District  v,   Dauchy,   25   Conn.   530,  146;  Bacon  v.  Cobb,  45  111.  47;  Har- 

68  Am.  Dec.  371;   Davis  v.  Smith,  rison  v.  Railroad  Co.,  74  Mo.  364, 

15  Mo.  467;   Jemison  v.  McDaniel,  41  Am.  Rep.  318;  Adams  v.  Nichols, 

646 


Ch.    19  IMPOSSIBLE    CONTRACTS.  §§    573,  574 

Thus,  if  a  person  contracts  to  build  a  house,  he  is  neither 
excused  from  performance,  nor  entitled  to  recover  for  what  he 
has  done,  when  the  house  is  destroyed  by  fire  or  other  cause 
beyond  his  control,  before  completion  of  the  work  and  accept- 
ance by  the  owner.^ 

If  a  man  undertakes  what  he  cannot  perform,  he  is  re- 
sponsible to  the  person  with  whom  he  contracts,'* 

§  574.  In  commercial  transactions. — In  establishing  rules  of 
liability  in  commercial  transactions,  they  should  be  uniform 
and  certain.  It  is  presumed  that  the  parties  contemplated  the 
continued  existence  of  the  subject-matter  of  the  contract.  Thus, 
where  a  contract  is  made  for  the  sale  and  delivery  of  specified 
articles  of  personal  property,  under  such  circumstances  that 
the  title  does  not  vest  in  the  vendee,  if  the  property  is  destroyed 
by  accident,  without  the  fault  of  the  vendor,  so  that  the  delivery 
is  never  made,  the  vendor  is  not  liable  to  the  vendee  in  dam- 
ages for  nondelivery.^ 

So,  if  a  party  agrees  to  sell  and  deliver  personal  property 
to  the  vendee  on  a  fixed  day,  and  the  property  is  destroyed  in 
the  interval,  the  obligation  ceases  and  the  vendee  has  no  rem- 
edy.^ There  is  no  hardship  in  placing  the  parties  in  the  posi- 
tion they  were  in  before  the  contract  was  made.     And  it  can 

19  Pick.    (Mass.)   275,  31  Am.  Dec.  Lnwing  v.  Rentles,  97  N.  Car.  350, 

137 ;  School  Trustees  V.  Bennett,  27  21    S.    E.    252.      See,    also,    Breck- 

N.  J.  L.  513,  72  Am.  Dec.  373;  The  nock  Company  v.  Pritchard,  6  Term 

Harriman,    9    Wall.    (U.    S.)     161;  R.    750;    Siegel    v.    Eaton.    105    111. 

Jacksonville,       etc.       Railway       v.  550,  46  N.  E.  449. 

Hooper,   160   U.   8.   514,   16   S.   Ct.  4.  Blight  v.  Page,  3  Bos.  &  Pul. 

379;  Atkinson  v.  Ritchie,  10  East,  295;  Baker  v.  Hodgson,  3  Maule  & 

530.     See,  also,  Bullock  v.  Donimit,  Sel.  271;   Mederes  v.  Hill,  8  Bing. 

6  Term  R.  650;  Phillips  v.  Stevens,  235;    Osgood   v.   Groning,   2   Camp. 

16   Mass.    238;    Gates   v.    Green,    4  466;    Market  Co.  v.   New  Orleans, 

Paige    (N.   Y.),   355,   27   Am.   Dec.  47  La.  Ann.  205,  16  So.  831;   Mis- 

68;   Holtzapflfell  v.   Baker,   18  Ves.  sissippi  Logging  Co.  v.  Robson,  69 

115.  Fed.  Rep.  773. 

3.  School  Trustees  v.  Bennett,  27  1.  Dexter    v.    Norton.    47    N.    Y. 

N.  J.  L.  513,  72  Am.  Dec.  373;  Fel-  62,  7  Am.  Rep.  415. 

dew  V.  Besley,  42  Mich.   100,  3  N.  2.  Benjamin  on  Sales,  424. 
278,    36   Am.    Rep.    433    and   note; 

647 


§§    574-576  TERMINATION    OF    CONTEACTS.  Ch.    19 

make  no  difference  how  the  property  was  destroyed,  so  long  as 
the  party  was  not  in  any  degree  in  fault.  The  minds  of  the 
parties  are  presumed  to  have  contemplated  the  possible  destruc- 
tion of  the  property,  and  not  the  manner  of  its  destruction. 

§  575.  Bailment  of  an  article  to  be  repaired. — The  case  of  a 
bailment  of  an  article,  locatio  operis  faciendi,  is  generally  con- 
trolled by  a  different  rule.  If  the  article  intrusted  to  the  work- 
man is  lost  without  his  fault,  the  owner  must  sustain  the  loss, 
because  there  is  no  express  agreement  to  return  the  article  to 
the  owner  in  a  finished  condition.  There  is  an  implied  obli- 
gation of  the  workman  to  do  the  work  in  a  proper  manner,  and 
to  employ  the  materials  furnished  in  the  right  way.^  These 
obligations  grow  out  of  the  act  of  bailment;  they  are  its  legal 
consequences,  and  the  law  declares  them  to  be  so. 

Under  the  bankrupt  law  cases  may  arise,  involving  the  ques- 
tion, when,  under  the  circumstances  of  each  case,  the  property 
in  an  incomplete  chattel  in  process  of  manufacture  passes  out 
of  the  bankrupt,  so  as  not  to  belong  to  his  assignee,  and  the 
question,  upon  whom  the  loss  is  to  fall,  occasioned  by  an  in- 
evitable accident,  may  be  settled  by  determining  what  is 
equitable.* 

§  576.  Excused  by  act  of  law. — The  nonperformance  of  a 
contract  will  always  be  excused  where  it  is  based  upon  an  act 
of  law.^    So  a  covenant  in  a  lease  of  a  wooden  building  binding 

3.  Menetone  v.  Athawes,  3  Burr.  4.  Tripp  v.  Armitage,  4  Mees.  & 

1592;     Lord    v.    Wheeler,    1    Gray  Wels.    689;    Woods    v.    Russell,    5 

(Mass.),   282;    Weis  v.   Devlin,   67  Barn.  &  Aid.  942;  Claries  v.  Spence, 

Tex.  507,  3  S.  W.  726,  60  Am.  Rep.  4  Ad.  &  El.  448. 

38;  Wheelan  v.  Clock  Co.,  97  N.  Y.  1.  Cheny  v.  Cowan,  1  Dev.  &  Bat. 
293;  Haynes  v.  Church,  88  Mo.  ("NT.  Car.)  402;  Stern  v.  Dermis,  3 
285,  57  Am.  Rep.  413;  Hindrey  v.  Port.  (Ala.)  231;  Trimmier  v. 
Williams,  9  Colo.  371,  12  P.  436;  Thompson,  10  S.  Car.  164;  Missis- 
Wells  V.  Calnan,  107  Mass.  514,  9  sippi,  etc.  R.  R.  Co.  v.  Green,  9 
Am.  Rep.  65;  Butterfield  v.  Byron,  Heisk.  (Tenn.)  588;  Baker  v.  John- 
153  Mass.  517,  27  N.  E.  667,  12  L.  son,  42  N.  Y.  126;  Bailey  v.  De 
R.  A.  571  and  note,  25  Am.  St.  Rep.  Crespigny,  L.  R.  4  Q.  B.  180,  186, 
654;  Cook  v.  McCabe,  53  Wis.  250,  187;  Cordes  v.  Miller,  39  Mich. 
10  N.  507,  40  Am.  Rep.  765.  581,  33  Am.  Rep.  430;  Buffalo,  etc. 

648 


Ch.    19  IMPOSSIBLE   CONTRACTS.  §§    576-578 

the  lessor  to  rebuild  in  case  it  burns,  is  released  by  the  passage 
of  a  valid  municipal  ordinance  forbidding  the  erection  of 
wooden  buildings.^ 

But  if  the  change  in  the  law  is  only  temporary,  the  liability 
is  suspended  and  not  annulled,  and  the  contract  must  be  per- 
formed Avhen  the  law  is  revived.^  And  the  fact  that  the  per- 
formance of  a  contract  is  rendered  more  burdensome  and  ex- 
pensive by  law  after  it  is  entered  into  never  exonerates  a  party 
from  his  obligation,*  provided  it  is  still  possible  of  performance. 

§  577.  Tv^ro  ways  of  performance. — If  a  promisor  makes  his 
contract  unconditionally  to  do  a  thing  he  is  bound,  because  he 
takes  the  risk  of  being  liable  even  though  performance  becomes 
impossible  by  reason  of  circumstances  beyond  his  control.  And 
where  he  has  an  option  to  perform  his  contract  in  one  of  two 
ways,  and  it  becomes  impossible  of  performance  in  one  of  those 
ways,  he  must  perform  it  in  the  other  way.^ 

§  578.  Judgments  and  other  judicial  processes. — Judgments 
and  other  judicial  processes  may  be  discharged  by  act  of  law. 
So  long  as  a  judgment  debt  exists,  it  may  be  enforced  for  the 
benefit  of  the  judgment  creditor.  But  a  judgment  is  subject, 
however,  like  other  debts,  to  the  bankrupt  and  insolvent  laws. 
So  a  judg-ment  debtor,  being  discharged  from  his  debts,  pur- 

R.   R.   Co.   V.  Railroad  Co.,   Ill   N.  259;  Baglies  v.  Fettyplace,  7  Mass. 

Y.  132,  19  N.  E.  63,  2  L.  R.  A.  384;  325. 

Calhoun  v.  Calhoun,  2  S.  Car.  283;  4.  Baker    v.    Johnson,    42    N.    Y. 

People  V.   Ins.   Co.,  91   N.   Y.    174;  12(5. 

Espasito    V.    Bowden,    7    El.    &    B.  1.  Studholme   v.   Mandell,    1    Ld. 

763;   Jones  v.  Judd,  4   N.  Y.   411;  Raym.    279;    Mcllquhan    v.   Taylor 

Brick  Presbyterian  Church  v.  New  (1895),   1   Ch.  53,  8   Reports,  750; 

York,   5   Cow.    (N.   Y.)    538;    Sem-  Jacquinet  v.   Boutron,   19  La.  Ann. 

mes  V.  Ins.   Co.,   13   Wall.    (U.   S.)  30;    State  v.   Worthington,   7   Ohio, 

158;   Brewster  v.  Kitchell,   1   Salk.  171;  Drake  t.  White,  117  Mass.  10; 

198;   Anglesea  v.  Rugeley,  6  Q.  B.  Da  Costa  v.  Davis,   1   Bos.  &  Pul- 

107;    Brown   v.    Dillahunts,   4    Sm.  242;   Stevens  v.  Webb,  7  Car.  &  P. 

&  M.  (Miss.)  713,  4B  Am.  Dee.  499.  60;    Backworth  v.  Young,  4  Drew. 

2.  Cordes  v.  Miller,  39  Mich.  581,  1.  See,  also.  Edwards  v.  West,  7 
33  Am.  Rep.  430.  Ch.   D.   853;    Brown  v.   Ins.   Co.,    1 

3.  Hadley  v.   Clarke,   8   Term  R.  El.    &    E.    853;     Erie    Railway    v. 


Locomotive  Co.,  35  N.  J.  L.  240. 


649 


§§  578,  579        TERMINATION  OF  CONTEACTS.        Ch.  19 

suant  to  the  provision  of  the  bankrupt  or  insolvent  law,  the 
debt  is  also  cancelled  and  the  judgment  cannot  thereafter  be 
enforced.^ 

And  other  judicial  processes  may  discharge  a  debt,  by  render- 
ing its  enforcement  impossible.^  But  a  party  is  not  discharged 
from  his  obligation  to  perform  his  contract  by  the  fact  that  he 
is  arrested  and  detained  in  jail,  even  though  it  is  without  any 
fault  of  his.  In  such  case  the  other  party  may  rescind  the  con- 
tract. This  is  especially  so  between  master  and  servant.  If 
the  servant  is  arrested  and  placed  in  jail,  he  breaks  his  contract 
of  employment  and  the  master  may  declare  the  contract  for- 
feited.^ 

§  579-  Promissee  preventing  performance.  —  Where  the 
promisee  prevents  performance,  the  promisor  is  discharged, 
and  the  promisee  cannot  escape  liability  because  he  has  not 
signed  the  contract.  Where  a  contract  on  its  face  appears  to 
be  obligatory  upon  one  party  only,  but  it  is  manifest  that  it 
was  the  intention  of  the  parties,  and  the  consideration  upon 
which  the  one  party  assumed  an  express  obligation  was,  that 
there  should  be  a  corresponding  and  correllative  obligation  on 
the  Other  party,  such  obligation  will  be  implied.*  And  if  the 
promisee  prevents  the  fulfilment  of  the  contract,  the  promisor 
will  be  discharged.^ 

And  the  acceptance  of  a  building  as  finished  but  not  in  ac- 
cordance with  the  original  contract,  waives  the  contract  condi- 
tion, and  the  contractor  is  discharged  from  the  condition.^ 

1.  Blumenthal  v.  Andeison,  91  &  S.  807;  Pordage  v.  Cole,  1  Wm. 
N.  Y.  171.  Saund.   319. 

2.  Leopold  V.  Salkey,  89  111.  412,  5.  Cort  v.  Railway  Co.,  17  Ad. 
31  Am.  Rep.  93  and  note;  Walker  &  El.  127;  Derby  v.  Johnson,  21 
V.  Fitts,  24  Pick.  (Mass.)  191,  35  Vt.  17;  Clark  v.  Marsiglia,  1  Denio 
Am.  Dec.  296;  Lord  v.  Thomas,  64  (N.  Y.),  317,  43  Am.  Dec.  670  and 
N.  Y.  107.  note;    Black   v.    Woodrow,    39    Md. 

3.  Leopold  V.  Salkey,  89  111.  412,  194. 

31  Am.  Rep.  93  and  note.  6.  Smith  v.  Aiker,  102  N.  Y.  87, 

4.  Black    V.    Woodrow,    39    Md,        5  N.  E.  791. 
194;   Churchward  v.  Queen,  6  Best 

650 


Ch.    19'  IMPOSSIBLE    CONTRACTS.  §    580 

ARTICLE  II. 

Pekfobmance  Excused  by  Act  of  God  and  Public  Enemy. 

Section  580.  Act  of  God  will  Excuse  Performance. 

581.  By  Public  Enemy. 

582.  Act  of  God — Common  Carriers. 

583.  Common  Carriers — When  Liable  for  Loss  by  Act  of  God. 

584.  Where  Law  Imposes  a  Duty. 

585.  Innkeepers. 

586.  Failure  of  Consideration  by  Act  of  God. 

587.  Destruction  by  Fire. 

588.  Performance — Intervention  of  the  Act  of  God. 

§  580.  Act  of  God  will  excuse  performance. — By  the  act  of 
God  is  meant  something-  superhuman  or  something  in  opposi- 
tion to  the  act  of  man.^  The  act  of  God  is  some  manifestation 
of  nature  to  which  man  has  not  contributed  and  which  he  can- 
not avert  or  overcome,  such  as  lightning,  cold,  or  a  tempest; 
fire  caused  bj  lightning  but  not  from  an  ordinary  accident.^ 
So  where  the  thing  contracted  for  becomes  impossible,  by  the 
act  of  God,  the  obligated  party  is  excused  from  performance.' 

Another  class  of  cases  holds  that  the  act  of  God  will  excuse 
the  nonperformance  of  a  duty  created  by  law,  but  not  of  one 
created  by  contract.'* 

But  the  general  rule  is  that  a  loss  or  injury  is  due  to  the  act 
of  God  when  it  is  occasioned  exclusively  by  natural  causes 
such  as  could  not  be  prevented  by  human  care,  skill  and  fore- 

1.  Chicago,  etc.  R.  R.  Co.  v.  Saw-  Browne  v.  United  States,  30  Ct.  CI. 
yer,  69  111.  285,  18  Am.  Rep.  613;  124;  Usher  v.  Hiatt,  18  Kan.  195; 
Hale  V.  Navigation  Co.,  15  Conn.  Selden  v.  Preston,  11  Bush  (Ky.), 
539,  39  Am.  Dec.  398;  Nichols  v.  191;  Morrow  v.  Campbell,  7  Port. 
Marsland,  L.  R.  10  Exch.  255.  (Ala.)   41,  31  Am.  Dec.  704;  Baily 

2.  Price  v.  Hartshorn,  44  N.  Y.  v.  De  Crespigny,  L.  R.  4  Q.  B.  180, 
94,    4    Am.    Rep.    645;    Merchants*  185. 

Despatch  Co.  v.  Smith,  76  111.  542;  4.  School    Dist.    v.    Dauchy,    25 

Vail  v.  Railroad  Co.,  63  Mo.  230.  Conn.  530,  68  Am.  Dec.   371.     See, 

3.  Walton  v.  HoUis  (Miss.),  16  also,  Jemison  v.  McDaniel,  25  Miss. 
South.  Rep.  260;  Burrill  v.  Cross-  83;  Bryan  v.  Spurgin,  5  Sneed 
man,  65  Fed.  Rep.  104;  Bullman  v.  (Tenn.),  681;  Clancy  v.  Overman, 
Fenwick     (1894),     1     Q.    B.     179;  1  Dev.  &  Bat.    (N.  Car.)    402. 

651 


§§    580-582  TERMINATION    OF    CONTRACTS.  Ch.    19 

sight,  and  such  act  will  excuse  performance.^  An  unprece- 
dented flood,  by  reason  of  which  the  baggage  of  a  passenger  is 
swept  away,  is  an  act  of  God.® 

§  581.  By  the  public  enemy. — A  performance  may  be  ex- 
cused by  the  public  enemies  of  the  parties'  nation.  But  by 
enemies  is  to  be  understood,  enemies  with  whom  the  nation  is 
itself  at  open  war,  and  not  merely  robbers,  thieves  and  other 
private  depredators,  however  much  they  may  be  deemed  in  a 
moral  sense  at  war  with  society.  Losses,  therefore,  which  are 
occasioned  by  robbery  on  the  highway  or  by  the  depredations 
of  mobs,  riots,  insurrections  and  other  felonies,  are  not  deemed 
losses  by  enemies  within  the  meaning  of  the  exceptions,  and 
do  not  excuse  the  performance  of  contracts.'^ 

§  582.  Act  of  God — Common  carriers. — A  common  carrier 
must  carry  the  goods  safely.  If  the  goods  are  destroyed,  not 
by  the  act  of  God  or  the  public  enemy,  the  carrier  is  responsible.^ 
Acts  of  God  excuse  the  carrier  when  diligence  is  used.^  Thus, 
the  bursting  of  a  waterspout,  causing  an  accident  on  a  rail- 
road train,  is  an  act  of  God.^  And  so  is  an  unprecedented  flood 
an  act  of  God.*     Where  the  act  is  produced  exclusively  by 

5.  Wald  V.  Railroad  Co.,  162  111.  6  Mo.  App.  554;  Long  v.  Railroad 
545,  44  M.  E.  888,  35  L.  R.  A.  356,  Co.,  147  Pa.  St.  343,  23  A.  459,  14 
53  Am.  St.  Rep.  332.  L.  R.  A.  741,  30  Am.  St.  Rep.  732 

6.  Wald  V.  Railroad  Co.,  162  111.  and  note;  Transportation  Co.  v. 
545,  44  N.  E.  888,  35  L.  R.  A.  356,  Downie,  11  Wall.  (U.  S.)  130; 
53  Am.  St.  Rep.  332.  Norfolk,  etc.  R.  R.  Co.  v.  Marshall, 

7.  State  V.  Moore,  74  Mo.  413,  90  Va.  836,  20  S.  E.  823;  Wald  v. 
41  Am.  Rep.  322;  Forward  v.  Pit-  Railroad  Co.,  162  111.  545,  44  N.  E. 
tard,  1  Term  R.  27,  34;  Gordon  v.  888,  35  L.  R.  A.  356,  53  Am.  St. 
Rimmington,  1  Camp.  123;  Sugar-  Rep.  332;  Strohn  v.  Railroad  Co., 
man  v.  State,  28  Ark.  142.  23  Wis.   126,  99  Am.  Dec.   114  and 

1.  Holladay  v.  Kennard,  12  Wall.  note;  Wallace  v.  Sanders,  42  Ga. 
(U.  S.)  254;  Packard  v.  Taylor,  35  486;  Houston,  etc.  R.  R.  Co.  v. 
Ark.   402,   37   Am.   Rep.   37;    Milti-        Harn,  44  Tex.  628. 

more  v.  Railroad  Co.,  37  Wis.  190.  3.  Norfolk,  etc.  R.  R.  Co.  v.  Mar- 

2.  Curtis  V.  Railroad  Co.,  18  N.       shall,  90  Va.  836,  20  S.  E.  823. 

Y.  534,  75  Am.  Dec.  258  and  note;  4.  Wald  v.  Railroad  Co.,  162  111. 

Railroad  Co.  v.  Reed,  10  Wall.    (U.        545,  44  N.  E.  888,  35  L.  R.  A.  356, 
S.)    176;  Gillespie  v.  Railroad  Co.,       53  Am.  St.  Rep.  332. 

652 


Ch.   19 


IMPOSSIBLE    CONTRACTS. 


§§  582,583 


natural  causes  such  as  could  not  be  preA'^ented  by  human  care, 
skill  and  foresight,  the  common  carrier  is  excused.^ 


§  583.  Common  carrier — When  liable  for  loss  by  act  of  God. 

— Unnecessary  delay  of  a  carrier  which  subjects  the  goods  in 
its  possession  to  a  loss  by  an  act  of  God  which  they  would  not 
otherwise  have  met  with,  is  of  itself  such  negligence  as  will 
make  the  carrier  liable  for  the  loss.'' 

Thus,  a  deviation  from  the  usual  course  by  master  of  a  ves- 
sel, during  which  time  a  cargo  is  injured  by  a  storm  at  sea, 
is  a  sufficient  proximate  cause  of  the  loss  to  entitle  the  shipper 
to  recover,  as  it  brings  the  vessel  in  contact  with  the  storm, 
in  itself  the  act  of  God.^  Where  the  loss  is  caused  by  the  act 
of  God,  if  the  negligence  of  the  carrier  mingles  with  it  as  an 
active  and  co-operative  cause,  the  carrier  will  be  responsible.' 
Therefore,  a  carrier,  without  sufficient  reason,  which  fails  to 
forward  the  baggage  upon  a  limited  train  taken  by  the  owner 
of  it,  is  liable  for  its  destruction  by  a  flood  which  comes  upon 
the  later  train  on  which  it  is  shipped,  though  such  flood  is  in 
itself  an  act  of  God.* 


5.  Wald  V.  Railroad  Co.,  162  111 
545,  44  N.  E.  888,  35  L.  R.  A.  356 
53  Am.  St.  Rep.  332 ;  Long  v.  Rail 
road  Co.,  147  Pa.  St.  343,  23  A 
459,  14  L.  R.  A.  741,  30  Am.  St 
Rep.  732  and  note;  Railroad  Co.  v 
Reed,  10  Wall.   (U.  S.)    176. 

1.  Baltimore,  etc.  R.  R.  Co.  v 
School  Dist.,  96  Pa.  St.  65,  42  Am 
Rep.  529;  Philadelphia,  etc.  R.  R 
Co.  V.  Anderson,  107  Pa.  St.  360: 
Michigan  Central  R.  R.  Co.  v.  Cur 
tis,  80  in.  324;  Wald  v.  Railroad 
Co.,  162  III.  545,  44  N.  E.  888,  35 
L.  R.  A.  356,  53  Am.  St.  Rep.  332; 
Michaels  v.  Railroad  Co.,  30  N.  Y. 
564;  Read  v.  Spaulding,  30  N.  Y. 
630,  86  Am.  Dec.  415;  Dening  v. 
Railroad  Co.,  48  N.  H.  455,  2  Am. 


Rep.  267;  Read  v.  Railroad  Co.,  60 
Mo.  199;  Williams  v.  Grant,  1 
Conn.  487;  Davis  v.  Garrett,  6 
Bing.  716;  Crosby  v.  Fitch,  12 
Conn.  410,  31  Am.  Dee.  745;  Rod- 
gers  V.  Railroad  Co.,  67  Cal.  606,  8 
P.  377;   Salesbury  v.  Herchenroder, 

106  Mass.  458;    Higgins  v.   Dewey, 

107  Mass.  494,  8  Am.  Rep.  354. 
Compare  Denny  v.  Railroad  Co.,  13 
Gray  (Mass.),  481,  74  Am.  Dec. 
645;  Morrison  v.  Davis,  20  Pa.  St. 
171,  57  Am.  Dec.  695  and  note. 

2.  Davis  V.  Garrett,  6  Bing.  716. 

3.  Wolf  V.  Express  Co.,  43  Mo. 
421,  97  Am.  Dec.  406  and  note. 

4.  Wald  V.  Railroad  Co.,  162  111. 
545,  44  N.  E.  888,  35  L.  R.  A.  356, 
53  Am.  St.  Rep.  332. 


653 


§§  584,  585       TERMINATION  OF  CONTBACTS.        Ch.  19 

§  584.  Where  law  imposes  a  duty. — Where  the  law  imposes 
a  duty  npon  a  party,  and  he  is  disabled  to  perform  it  by  the 
act  of  God,  the  performance  is  excused.^  But  where  the  prom- 
isor is  a  public  officer  the  case  is  different.  A  public  officer 
insures  the  safetly  of  all  moneys  officially  received  by  him 
against  loss  by  any  means  whatever,  including  such  loss  as 
arises  from  the  act  of  God  or  the  public  enemy.  And  this  lia- 
bility is  mainly  due  to  public  policy  and  the  evil  consequences 
which  would  follow  from  any  less  rigid  rule.® 

But  the  case  of  a  public  officer  is  different  from  that  of  a 
guardian  who  is  liable  only  for  honesty  and  due  diligence.'' 

§  585.  Innkeepers. — Innkeepers  are  insurers  of  the  property 
of  their  guests  committed  to  their  care,  and  are  liable  for  its 
loss  or  injury,  when  not  caused  by  the  act  of  God,  the  public 
enemy,  or  the  neglect  or  fault  of  the  owner  or  his  servants.^ 
Upon  proof  of  loss,  the  onus  of  bringing  the  case  within  the 
exception  is  upon  the  innkeeper.^ 

The  statute  now  gives  the  innkeeper  a  right  to  make  reason- 
able rules  as  to  the  disposition  of  a  guest's  baggage,  money  and 
other  valuables,  which  must  be  complied  with  in  order  to  make 
the  innkeeper  liable. 

When  a  guest's  goods  are  at  a  hotel  and  he  leaves,  he  has  a 
reasonable  time  to  remove  them,^  and  the  innkeeper's  extraor- 

5.  Mosely  v.  Baker,  2  Sneed  7.  Atkinson  v.  Whitehead,  66  N. 
(Tenn.),  302,  58  Am.  Dec.  63;  Ry-        Car.  296. 

lands    V.    Fletcher,   L.    R.    3    H.   L.  1.  Norcross  v.   Norcross,   51   Me. 

330,  340;  Rea  v.  Somerset,  8  Term  163. 

R.  312.  2.  Shaw   v.    Berry,    31    Me.    479, 

6.  United  States  v.  Dashiell,  4  52  Am.  Dec.  628;  Mason  v.  Thomp- 
How.  (U.  S.)  182;  United  States  son,  9  Pick.  (Mass.)  280,  20  Am. 
V.  Prescott,  4  How.  (U.  S.)  587;  Dee.  471;  Norcross  v.  Norcross,  51 
United    States    v.    Keeler,    1    Wall.  Me.  163. 

(U.  S.)   83;  Thompson  v.  Trustees,  3.  Murray   v.    Marshall,    9    Colo. 

30  111.  99;  Hancock  v.  Hazzard,  12  482,   13  P.   589,  59  Am.  Rep.   152; 

Cush.     (Mass.)     112,    59    Am.    Dec.  Maxwell  v.  Gerard,  84  Hun,  537,  32 

171;    Muzzy   v.    Shattuck,    1    Denio  JSI.    Y.   S.    849,   66   N.   Y.    St.    323; 

(N.   Y.),   233;    Havens  v.  Lathene,  Adams  v.  Clem,  41   Ga.   65,  5  Am. 

75    N.    Car.    505;    State   v.    Bladen  Kep.  524. 
County,  73  N.  Car.  255. 

654 


Ch.    19  IMPOSSIBLE   CONTRACTS.  §§    585-587 

dinarj  liability  would  remain  until  the  expiration  of  such  rea- 
sonable time,  which  will  vary  according  to  the  circumstances.' 
And  when  a  clerk  of  the  hotel  agrees  with  a  guest  to  forward 
packages  and  letters  that  shall  come  to  the  latter,  he  acts  as  an 
agent  of  his  principal,  the  hotel  owTier,  or  landlord,  who  is 
bound  so  far  as  such  acts  are  within  the  duties  and  liabilities 
of  an  innkeeper.  And  an  agreement  to  forward  letters  and 
packages  by  the  clerk  is  within  the  scope  of  his  business  and 
binds  his  principal.*  Innkeepers  and  travelers  recognize  the 
fact  that  it  is  essential  to  the  proper  conduct  of  business  that 
letters  and  packages  to  business  and  traveling  men  be  for- 
warded ;  it  is  a  general  practice  on  account  of  the  increased 
demand  for  more  extended  accommodations  in  this  respect. 
But  innkeepers  are  not  liable  after  the  relation  of  guest  and 
innkeeper  has  ceased  and  the  guest  has  left.^ 

§  586.  Failure  of  consideration  by  act  of  God. — A  consid- 
eration may  fail  by  some  superhuman  agency.  Thus,  no  action 
lies  on  an  agreement  by  a  student,  promising  to  pay  for  tuition 
for  a  specified  time  if,  during  the  interval  of  that  period,  the 
promisor  is  prevented  by  sickness  from  attending  and  receiving 
the  instruction.  As  the  instruction  was  not  received,  the  con- 
sideration had  failed.  For  the  parties  have  acted  upon  the  as- 
sumption of  the  continuing  ability  of  the  promisee  to  give  and 
of  the  promisor  to  receive  the  proposed  instruction.^ 

§  587.  Destruction  by  fire. — Destruction  by  fire  does  not 
discharge  the  promisor.  Thus,  where  a  person  has  contracted 
unconditionally  to  build  a  house  on  the  land  of  another,  and 
the  house  is  partially  completed  when  it  is  consumed  by  fire, 
the  promisor  is  not  discharged  from  his  obligation  to  fulfill 
the  contract^    Such  a  fire  is  not  the  act  of  God.    And  so,  where 

4.  Baehr   v.   Downey,     132   Mich.  259,  12  L.  R.  A.  382  and  note;  Hays 
142.  V.  Turner,  23  Iowa,  214. 

5.  O'Brien  v.  Vail,  22   Fla.   627,  6.  Stewart    v.    Loring,    5    Allen 
1    So.    137,    1    Am.    St.    Rep.    219;  (Mass.),  306,  81  Am.  Dec.  747. 
Glenn  v.  Jackson,  93  Ala.  342,  9  So.  7.  Adams    v.    Nichols,    19    Pick. 

655 


§§  587,  588        TERMINATION  OF  CONTKACTS.        Ch.  19 

a  publisher  has  been  employed  to  publish  a  certain  number  of 
copies  of  a  work,  and  prints  them  and  delivers  a  part,  and  the 
rest  is  consumed  bj  fire,  he  cannot  recover  for  those  delivered, 
and  his  contract  is  still  binding  to  deliver  the  remainder.* 
But  fire  caused  by  lightning  is  an  act  of  God.^ 

Ship-owners,  by  act  of  Congress  of  1851,  are  relieved  from 
all  responsibility  by  fire,  when  acting  with  due  diligence. ^° 

Under  the  general  rule,  if  a  schoolhouse  burns,  and  a  school 
is  in  progress,  the  school  authorities  must  find  a  place  to  con- 
tinue the  school,  and  if  they  do  not  the  teacher  can  recover  for 
the  entire  time  of  his  contract,  though  the  school  is  suspended." 

§  588.  Performance — Intervention  of  the  act  of  God. — The 

nonperformance  of  a  contract  is  not  excused  by  the  act  of  God, 
where  it  may  be  substantially  carried  into  effect,  although  the 
act  of  God  makes  a  literal  and  precise  performance  of  it  im- 
possible.-^ And  the  most  a  court  of  equity  can  do  in  a  case  where 
an  agreement  cannot  be  carried  out  according  to  the  intention 
of  the  parties,  in  consequence  of  an  act  of  God  or  something 
over  which  the  parties  could  have  no  control,  is  to  adopt  such 
an  equitable  arrangement  as  the  parties  probably  would  have 
inserted  in  the  agreement  on  that  subject,  if  they  had  foreseen 
the  probability  of  such  an  event  and  provided  for  the  same.* 
The  rule  that  if  the  thing  to  be  done  becomes  physically  im- 

(Mass.)     275,    31    Am.    Dec.    137;  Dist.  v.  Daucliy,  25   Conn.   530,  68 

Jones  V.   United    States,   96   U.    S.  Am.  Dec.  371. 

24;   School  Trustees  v.  Bennett,  27  10.  K  Y.  Cent.  Railroad  Co.  v. 

N.    J.    L.    513,    72   Am.    Dec.    373;  Lockwood,  17  Wall.    (U.  S.)   357. 

Fildevv  v.  Basley,  42  Mich.   100,  3  11.  Charlestown  School  Town  v. 

N.  278,  36  Am.  Rep.  433  and  note;  Hay,  74  Ind.  127. 

Dermott  v.  Jones,  2  Wall.    (U.  S.)  1.  Williams  v.  Vanderbilt,  28  N. 

1;    Lawing  v.   Rintles,   97    N.    Car.  Y.  217.    Compare  Briggs  v.  Vander- 

350,  2  S.  E.  252.  bilt,    19   Barb.    (N.   Y.)    222;    Bon- 

8.  Adlard  v.  Booth,  7  Car.  &  P.  steel  v.  Vanderbilt,  21  Barb.  (N. 
108.  Y.)   26. 

9.  Bishop  on  Cont.  593.  As  to  2.  Newton  v.  Rowse,  1  Vern. 
discharge  of  contract  by  a  fire  460;  Quick  v.  Stuyvesant,  2  Paige 
caused     by     lightning,     see     School  (N.   Y.),   84;    Chase   v.   Barrett,   4 


Paige   (N.  Y.),  148. 


656 


Ch.  19 


IMPOSSIBLE    CONTRACTS. 


§  588 


possible  to  be  done  by  the  act  of  God,  performance  is  excused, 
does  not  prevail  when  the  essential  purpose  of  the  contract 
may  be  accomplished.  If  the  intention  of  the  parties  can  be 
substantially,  though  not  literally  executed,  performance  is  not 
excused.^  And  where  a  statute  makes  a  contract  in  part  un- 
lawful, if  justice  can  be  done,  the  lawful  part  should  be  per- 
formed, otherwise  not.* 

The  fact  that  the  performance  of  a  contract  to  furnish  hay 
has  been  rendered  impossible  by  failure  of  the  crop  through 
natural  causes,  relieves  the  party  of  the  duty  to  perform.^ 
Where  performance  is  prevented  by  the  act  of  God,  no  breach 
can  be  assigned,  although  no  reference  thereto  was  made  in  the 
contract.^  The  breaking  of  machinery  is  not  an  act  of  God  and 
does  not  excuse  performance  of  contract.^  But  where  some 
fortuitous  event  prevents  performance,  the  defendant  will  be 
excused.* 

So  a  failure  to  run  street  cars  at  certain  intervals  according; 
to  contract,  is  excused  by  heavy  fall  of  snow,  provided  the  street 
car  company  exercised  due  diligence  to  make  the  trips.* 


3.  White  V.  Mann,  26  Me.  361; 
Chapman  v.  Dalton,  Plowd.  284; 
Haltham  v.  Ryland,  1  Eq.  Cas.  Abr. 
18. 

4.  Bettsworth  v.  St.  Paul,  1  Bro. 
P.  C.  240. 

5.  Browne  v.  United  States,  30 
Ct.  CI.  124w 


6.  Gleason  v.  United  States,  33 
Ct.  CI.  65. 

7.  Day  v.  Jeffords,  102  Ga.  714, 
29  S.  E.  591. 

8.  Eomero  v.  Newman,  50  La. 
Ann.  80,  23  S.  E.  493. 

9.  Buffalo,  etc.  Land  Co.  v.  Bel- 
levue,  etc.  Imp.  Co.,  165  N.  Y.  247, 
59  N.  E.  5,  51  L.  R.  A.  951. 


657 


§  589  TERMINATION  OF  CONTEACTS.  Ch.  19 

ARTICLE  III. 

KoNPEEFORMANCE   OF   CONTRACT   OF    PERSONAL    SERVICE. 

Section  589.  Personal  Service. 

590.  Where  Personal  Skill  is  not  Required. 

591.  Sickness. 

592.  Death  of  Employer. 

§  589.  Personal  service. — Contracts  for  the  personal  services, 
whether  of  the  contracting  or  of  a  third  person,  requiring  skill, 
and  which  can  only  be  performed  by  the  particular  individual 
named,  are  not  in  their  nature,  of  absolute  obligation  under 
all  circumstances.  Both  parties  contemplate  the  continuance 
of  the  ability  of  the  person  whose  skilled  services  are  the  sub- 
ject of  the  contract,  as  one  of  the  conditions  of  the  contract. 
Contracts  for  personal  services  are  subject  to  this  implied  con- 
dition, that  the  person  shall  be  able  at  the  time  appointed  to 
perform  them ;  and  if  he  dies,  or  without  fault  on  the  part  of 
the  covenantor  becomes  disabled,  the  obligation  to  perform  is 
extinguished.^ 

Thus,  where  the  principal  singer  in  an  opera  troupe  is  sick, 
the  manager  of  the  troupe  is  excused  from  performing,  though 
he  had  made  a  contract  with  the  proprietor  of  the  theatre  to 
perform.^  But  if  the  failure  to  perform  is  from  a  less  serious 
cause  than  sickness,  the  promisor  will  not  be  excused.^ 

1.  Robinson    v.    Davison,    L.    R.  586;     Green    v.     Gilbert,    21     Wis. 

6  Exch.  268;   Boast  v.  Firth,  4  C.  401;    Jennings    v.    Lyons,    39    Wis. 

P.    1;    People   v.   Manning,   8    Cow.  553,    20    Am.    Rep.    57;     Allen    v. 

(N.  Y.)    297;   Jones  v.  Judd,  4  N.  Baker,  86  N.  Car.  91,  41  Am.  Rep. 

Y.  411;   Clark  v.  Gilbert,  26  N.  Y.  445;   Fenton  v.  Clark,   11  Vt.  557; 

279,    84    Am.    Dec.    189;    Wolfe    v.  Hubbard    v.    Belden,    27    Vt.    645; 

Howes,   24  Barb.    (N.  Y.)    174,  20  Fuller  v.  Brown,   11  Met.    (Mass.) 

N.  Y.  197,  75  Am.  Dec.  388;   Gray  440;   Shulz  v.  Johnson.   5   B.  Mon. 

V.  Murr.ay,  3  Johns.   Cas.    (N.  Y.)  (Ky.)    497;   Scully  v.   Kirkpatrick, 

167;   Knight  v.  Bean,  22  Me.  531;  79  Pa.  St.  324,  21  Am.  Rep.  62. 

Poussard  v.  Spiers,  1  Q.  B.  D.  410;  2.  Spalding   v.    Rosa,    71    N.    Y. 

Harrington     v.     Iron     Works,     119  40,  27  Am.  Rep.  7. 

Mass.  82;  Siler  v.  Gray,  86  N.  Car.  3.  Earp  v.  Tyler,  73  Mo.  617. 

658 


Ch.    19  IMPOSSIBLE    CONTRACTS.  §§    589,  590 

A  contract  made  by  a  painter  to  paint  a  picture,  or  an  autlior 
to  write  a  book,  or  an  apprentice  to  serve  bis  master  a  specified 
number  of  years,  or  in  any  contract  for  personal  services  de- 
pendent upon  tbe  life  of  tbe  individual  making  it,  tbe  contract 
is  discbarged  upon  the  death  of  the  party,  in  accordance  with 
the  condition  of  continued  existence  raised  by  implication.  In 
contracts  in  which  performance  depends  on  the  continued  ex- 
istence of  a  given  person  or  thing,  a  condition  is  implied  that 
the  impossibility  of  performance,  arising  from  the  perishing  of 
the  person  or  thing,  shall  excuse  the  performance ;  because 
from  the  nature  of  the  contract,  it  is  apparent  that  the  parties 
contracted  on  the  basis  of  the  continued  existence  of  the  par- 
ticular person  or  thing.^ 

Where  one  employed  to  teach  in  a  public  school  for  a  certain 
period,  the  fact  that  the  school  was  necessarily  closed  for  part 
of  the  time  by  order  of  the  Board  of  Health,  does  not  deprive 
the  teacher  of  the  right  of  compensation  for  the  entire  time, 
since  such  closing  of  the  schools  was  not  the  act  of  God.^ 

§  590.  Where  personal  skill  is  not  required. — The  perform- 
ance of  all  contracts  does  not  require  personal  skill  of  the 
promisor,  and  others  may  fulfill  the  conditions.  Thus,  the  per- 
sonal representatives  of  a  deceased  promisor  may  be  called  up- 
on to  perform  the  agreement  where  the  services  are  of  such  a 
character  that  they  may  be  just  as  well  performed  by  them.® 
Hence,  the  sickness  of  a  contractor  does  not  excuse  his  per- 
formance, because  he  can  build  the  house  by  proxy.'  In  such 
case  if  the  promisor  dies  his  personal  representatives  take  his 

4.  Taylor  v.  Caldwell,  3  Best  &  Shulz  v.  Johnson,  5  B.  Mon.  (Ky.) 
S.  826,  2  Smith's  Lead.  Cas.  50;  407;  Janin  v.  Brown,  59  Cal.  37; 
Pothier  on  Contracts  and  Sales,  Howe  Sew.  Mach.  Co.  v.  Rosenteel, 
art.  4,  sec.  1,  p.  31.  24  Fed.  Rep.  583;  Werner  v.  Hum- 

5.  Carthage  v.  Gray,  10  Ind.  phreys,  3  Scott,  N.  R.  226,  2  Man. 
App.  428,  37  N.  E.  1059.  &   Gr.  853;    Smith  v.  Coal   Co.,   83 

6.  Siler  v.  Gray,  86  N.  Car.  566;  111.  498. 

Billing's  Appeal,   106  Pa.   St.  558;  7.  Cassady    v.     Clarke,     7     Ark. 

Hawkins  v.  Ball,  18  B.  Mon.   (Ky.)         123. 
816,    68    Am.    Dec.    755    and    note; 

659 


§§  590-592        TERMINATION  OF  CONTEACTS.        Ch.  19 

place  and  are  subject  to  fulfill  his  promises  and  to  carry  them 
into  effect.^ 

§  591.  Sickness. — If  the  performance  of  the  contract  be- 
comes impossible  by  sickness  or  similar  disability,  the  con- 
tractor may  recover  a  quantum  meruit  for  what  he  did  perform, 
as  sickness  is  an  excuse  for  nonperformance  of  personal  obli- 
gations.^ But  a  contagious  disease  like  small-pox  is  not  the  act 
of  God  in  such  a  sense  as  to  excuse  a  school  district  from  lia- 
bility on  a  contract  with  a  teacher,  the  performance  of  which 
the  district  has  prevented  by  closing  school,  and  the  teacher 
may  recover  his  salary  for  the  time  of  suspension  of  school.^** 

§  592.  Death  of  employer. — The  death  of  the  employer  ex- 
cuses the  employe  from  completing  his  contract  where  it  is  for 
personal  services.^^  The  death  of  one  of  the  parties  discharges 
the  contract,  or  excuses  its  further  performance.  This  is  the 
case  where  the  engagement  is  of  a  strictly  personal  character, 
requiring  personal  skill  or  capacity,  as  a  contract  to  write  a 
book  for  a  publisher,  or  a  contract  by  a  physician  to  cure  a 
particular  disease,  and  the  like. 

But  the  death  of  one  of  two  joint  contractors  who  has  agreed 
to  employ  a  party,  does  not  discharge  the  survivor  from  the 
obligation  of  the  contract,^  because  the  joint  contractor  has  as- 
sumed the  responsibility  as  a  joint  promisor;  and  neither  the 
insolvency  nor  the  death  of  his  copromisor  will  discharge  the 
contract,  or  release  him  from  the  obligation  he  has  assumed.^* 

8.  Werner  v.  Humphreys,  2  Man.  10.  Dewey  v.  School  Dist.,  43 
&  Gr.  853;  Smith  v.  Coal  Co.,  83  Mich.  480,  5  N.  646,  38  Am.  Rep. 
111.  498;  Hawkins  v.  Ball,  18  B.  200  and  note;  Carthage  v.  Gray,  10 
Mon.    (Ky.)    816,  68  Am.  Dec.  755  Ind.  App.  428,  37  N.  E.  1059. 

and  note;  Siler  v.  Gray,  86  N.  Car.  11.  Yerrington  v.  Green,  7  R.  I. 

566;  White  v.  Allen,  133  Mass.  423.  589,  84  Am.  Dec.  578. 

9.  Lakeman  v.  Pollard,  43  Me.  12.  Martin  v.  Hunt,  1  Allen 
463.     See,  also,  Harrington  v.  Iron  (Mass.),  418. 

Works,    119    Mass.    82;    Sickles    v.  13.  Martin    v.     Hunt,     1     Allen 

United  States,  1  Ct.  CI.  214.  (Mass.),  418. 


660 


CHAPTER  XX. 

Rescission  of  Contract. 


ARTICLE  I. 

Eight  to  Rescind. 

Section  593.  Executed  Contract. 

594.  Notice  and  Acceptance. 

595.  Right  to  Rescind. 

596.  Time  to  Rescind. 

597.  Notice  to  Rescind. 

598.  Rescission  in  Part. 

599.  Recovering  Back  Consideration  Paid. 

600.  Affirmance. 

601.  Sealed  Contracts — To  Recover  Money  Paid. 

§  593.  Executed  contracts. — It  is  only  executory  contracts 
that  can  be  rescinded.  And  when  a  contract  is  executed  an  at- 
tempt to  rescind  will  he  futile,  as  there  can  be  nothing  to  re- 
scind.-^ 

Thus,  in  case  there  is  an  absolute  sale,  proved  in  the  usual 
manner,  and  an  acknowledgment  of  an  executed  delivery  of 
property  to  vendee,  the  contract  is  executed  and  not  executory, 
and  cannot  then  be  rescinded.^  And  so  after  goods  are  sold, 
and  remain  in  the  warehouse  of  the  vendor  who  receives  rent 
for  storage  of  them,  the  acceptance  of  the  warehouse  rent  is  a 
complete  transfer  of  the  goods  to  the  vendee ;  such  is  an  exe- 
cuted delivery  by  the  vendor  to  the  vendee,  and  the  transitus 
is  at  an  end.^  A  reversal  of  what  has  been  executed  in  such  case 
can  only  be  effected  by  the  substitution  of  a  new  agreement 
with  a  consideration ;   it  can  be  effected  only  by  a  new  contract.* 

1.  Chapman  v.  Searle,  3  Pick.  3.  Hurry  v.  Mangles,  1  Camp. 
(Mass.)  38;  Quincy  v.  Tilton,  5  452;  Noble  v.  Adams,  7  Taunt.  59; 
Me.  277.  Barrett  v.  Goddard,  3  Mason,  C.  C. 

2.  Chapman    v.    Searle,    3    Pick.  107. 

(Mass.)   38.  4.  Quincy  v.  Tilton,  5  Me.  277. 

661 


§  594  TERMINATION  OF  CONTEACTS.  Ch.  20 

§   594.  Notice  and  acceptance — Rescission  of  contract. — By 

one  line  of  authorities,  where  one  party  to  the  contract  declares 
that  he  will  not  perform  his  part  on  the  day  fixed  and  so  stands 
until  the  time,  the  other  may  then  sue ;  that  is,  he  cannot  sue 
until  the  day  fixed  has  arrived  and  he  tenders  performance.^ 
The  law  now  in  England  is  that  a  positive,  absolute  refusal 
by  one  party  to  carry  out  the  contract,  is  in  itself  an  immediate, 
complete  breach  of  it  on  his  part,  and  dispenses  with  the  for- 
mality of  tendering  performance  by  the  other  party,  and  gives 
the  immediate  right  of  action  before  the  day  fixed.^  And  the 
Supreme  Court  of  the  United  States  holds,  that  an  unqualified 
and  positive  refusal  to  perform  a  contract,  though  the  perform- 
ance thereof  is  not  yet  due,  may,  if  the  renunciation  goes  to 
the  whole  contract,  be  treated  as  a  complete  breach,  which  will 
entitle  the  injiired  party  to  bring  his  action  at  once,  and  that 
the  damages  for  breach  of  contract  by  renunciation  thereof  be- 
fore performance  is  due,  are  measured  by  what  the  injured  party 
would  have  suffered  by  the  continued  breach  of  the  other  party, 
down  to  the  time  of  complete  performance,  less  any  abatement 
by  reason  of  circumstances  of  which  he  ought  reasonably  to  have 
availed  himself.^  This  is  the  best  doctrine  and  must  find  a 
following  by  all  the  courts  not  already  bound  by  precedent  to 
a  different  conclusion.  The  renunciation,  to  be  effectual,  must 
be  an  unequivocal  one;  and  a  refusal  to  treat  the  contract  as 
a  broken  one  by  the  promisee  prevents  his  right  to  bring  suit 
until  time  of  performance.  A  mere  assertion  that  the  party 
will  be  unable  or  will  refuse  to  perform  his  contract  is  not  suf- 
ficient, and  if  the  promisee  afterwards  continues  to  urge  or  de- 

1.  Ford  V.  Tiley,  6  Barn.  &  Cr.  B.  678;  Frost  v.  Knight,  L.  R. 
325;    Franchot    v.    Leach,    5    Cow.        Exch.  111. 

(N.  Y.)   506;  Traver  v.  Halsted,  23  3.  Roehm  v.  Horst,  178  U.  S.   1, 

Wend.    (N.   Y.)    66;    Shaw   v.   Ins.  20  S.  Ct.  780,  84  Fed.  Rep.  565,  62 

Co.,    69    N.    Y.    286 ;    Johnstone    v.  U.  S.  App.  520,  21  N.  Cor.  Rep.,  pp. 

Milling,   16  Q.  B.  U.  460;   Mersey,  64,   92,    125,   156,  where  this  ques- 

etc.  Co.  V.  Naylor,  9  App.  Cas.  434.  tion    is    discussed.      Chief    Justice 

2.  Cort  V.  Railway  Co.,  6  Eng.  Fuller,  who  rendered  this  decision, 
L.  &  Eq.  230;  Hochster  v.  De  La  has  exhaustively  reviewed  the 
Tour,  20  Eng.  L.  &  Eq.  157,  2  E.  &  authorities. 

6G2 


Ch,    20  RESCISSION    OF    CONTRACT.  §    594 

mand  a  compliance  with  the  contract,  he  has  not  put  himself 
in  a  position  to  sue  for  a  breach  at  once/  A  renunciation  of 
itself  does  not  create  a  breach.  There  must  be  an  adoption  of 
the  renunciation.  There  must  be  opportunity  left  to  the  prom- 
isee thereafter  to  insist  upon  performance  if  that  shall  prove 
more  advantageous,  or  sue  for  damages  for  a  breach  if  events 
shall  render  that  cause  the  more  promising  afterwards.  The 
renunciation  must  be  so  distinct  that  its  purpose  is  manifest 
and  it  must  be  absolute  and  final.  The  acquiescence  therein 
must  be  as  certain,  and  this  can  be  evidenced  by  suit  at  once 
for  damages.^ 

The  doctrine  of  an  inticipatory  breach  of  contract,  is  that  a 
renunciation  of  a  contract — that  is,  a  total  refusal  to  perform 
it,  by  one  party,  before  the  time  for  performance  arrives,  does 
not  by  itself  amount  to  a  breach  of  contract,  but  may  be  acted 
upon  and  adopted  by  the  other  party  as  a  rescission  of  the  con- 
tract as  to  give  an  immediate  right  of  action.  Such  a  renun- 
ciation does  not  of  itself  amount  to  a  rescission  of  the  contract, 
because  one  party  cannot  himself  rescind  it ;  but  the  other  party 
is  then  entitled  to  agTee  to  such  renunciation,  subject  to  the 
retention  by  him  of  his  right  to  bring  an  action  in  respect  of 
such  wrongful  rescission.^ 

4.  Smoot's  Case,  15  Wall.  (U.  Messersmitb,  19  Iowa,  179;  Howe 
S.)  36,  21  L.  Ed.  107;  Dingley  v.  v.  Conduitt,  76  Ind.  598;  Piatt  v. 
Oler,  117  U.  S.  490,  29  L.  Ed.  984,  Brand,  26  Mich.  173;  Davis  v.  Fur- 
6  S.  Ct.  850;  Roehm  v.  Horst,  178  iiiture  Co.,  41  W.  Va.  717,  24  S.  E. 
U.  S.  1,  20  S.  Ct.  780,  44  L.  Ed.  630;  Wells  v.  Hartford  Manilla 
953;  Johnstone  v.  Willing,  L.  R.  Co.  (N.  J.)  55  A.  599.  Compare 
10  Q.  B.  460;  Avery  v.  Bowden,  5  Daniels  v.  Newton,  114  Mass.  530, 
E.  &  B.  714;  Wells  v.  Hartford  19  Am.  Rep.  384;  Stanford  v.  Mc- 
Manilla  Co.    (N.  J.J,  55  A'.  599.  Gill,  6  N.  Dak.  536,  72  N.  W.  938, 

5.  Windmuller   v.    Pope,    107    N.  38  L.  R.  A.  760. 

Y.    674,    14    N.    E.    608;    Gray    v.  6.  Johnstone    v.    Willing,    L.    R. 

Green,  9  Hun    (N.  Y.),  334;   Zuck  16Q.  B.  460;    Roehm  v.   Horst,    178 

v.  McClure,  98  Pa.  St.  541;   Roeb-  U.   S.   1,  20  S.  Ct.  780,  44  L.  Ed. 

ling  Sons  Co.  v.  Fence  Co.,  130  111.  953;  Wells  v.  Hartford  Manila  Co. 

660,    22    N.    E.    518;     Crabtree    v.  (N.  J.),  55  A.  599. 


GG3 


§  595  TERMINATION  OF  CONTEACTS.  Ch.  20 

§  595-  Right  to  rescind. — It  is  not  essential  to  the  right  of  a 
party  to  a  contract  to  rescind  it  that  its  violation  by  the  other 
party  was  wilful.^ 

On  the  failure  of  consideration  for  a  contract  of  sale  on  which 
the  purchaser  has  advanced  money,  the  other  party  may  be  re- 
quired to  pay  back  the  price.^  If  one  fails  to  perform  the  con- 
dition of  the  contract,  the  other  may  rescind,^  or  if  he  disquali- 
fies himself  to  perform,  the  other  may  rescind  f  so  if  he  refuses 
to  sign  a  written  agreement  as  agreed  to  in  the  oral  contract 
the  other  may  rescind;^  but  every  shortcoming  of  a  party  is 
not  a  ground  for  rescission  by  the  other.® 

The  breach  to  justify  a  rescission  must  be  of  a  dependent 
covenant,  or  conduct  which  evinces  an  intention  no  longer  to  be 
bound  by  the  contract.'^ 

A  grantee  who  had  agreed  to  support  the  grantor  during 
life  in  consideration  of  the  conveyance  of  certain  property  will 
not  be  discharged  from  his  obligation  by  the  bringing  a  suit  to 
set  aside  the  conveyance  and  recovering  back  the  property,  where 
the  suit  has  been  abandoned  and  dismissed  without  trial,  and 
the  grantee  can  not  be  disturbed  in  the  possession  or  enjoyment 
of  the  property.* 

When  one  party  to  an  entire  executory  contract  has  failed 
to  perform  it  on  his  part,  and  the  other  party  is  not  in  default, 
and  in  a  condition  to  rescind,  he  may  abandon  the  contract.' 
There  may  be  cases  where  the  parties  cannot  be  placed  in  statu 
quo  when  the  right  to  rescind  cannot  be  exercised,  or  where 

1.  Bacon  v.  Green,  36  Fla.  325,  7.  Freeth  v.  Burr,  L.  R.  9  C.  P. 
18  S.  E.  870.  208. 

2.  Flandrow  v.  Hammond,  148  8.  Tuttle  v.  Burgett,  53  Ohio, 
N.  Y.  129,  42  N.  E.  511.  498,  42  N.  E.  427,  30  L.  R.  A.  214, 

3.  Anderson  v.  Haskell,  45  Iowa,  53  Am.  St.  Rep.  649. 

45 ;  Reed  v.  Golden,  26  Kan.  500.  9.  Bacon  v.   Green,   36   Fla.   325, 

4.  Warren  v.  Richmond,  53  III.  18  S.  E.  870;  Brown  v.  Harris,  2 
62;   Little  v.  Thurston,  58  Me.  86.  Gray    (Mass.),    359;    Giles    v.    Ed- 

5.  Gullich  V.  Alford.  61  Miss.  wards,  7  Term  R.  181;  Webster  v. 
224,  Enfield,  5  Gilm.    (111.)    298;   Evans 

6.  Weintz  v.  Hafner,  78  HI.  27 ;  v.  Givens,  22  Fla.  476. 
Franklin    v.    Miller,    4    Ad.    &    El. 

599. 

664 


Ch.    20  RESCISSION    OF   CONTRACT.  §§    595-59Y 

one  party  to  a  contract  has  received  benefits  thereunder  which 
he  cannot  retain  and  rescind/^  A  breach  by  one  party  which 
will  give  the  other  a  right  to  rescind,  need  not  necessarily  be 
such  as  will  sustain  an  action  for  damages.^^ 

§  596.  Time  to  rescind.  —  An  executory  contract  that  con- 
tains no  stipulation  for  its  rescission  and  that  has  not  been  in- 
duced by  fraud,  may,  in  general,  be  rescinded  by  one  party 
only  when  the  other  expressly  refuses  to  perform,  or  has  ren- 
dered himself  incapable  of  performing  it.  More  delay  in  the 
execution  of  a  contract  whose  terms  will  be  satisfied  by  per- 
formance within  a  reasonable  time  does  not  of  itself  entitle  the 
other  party  to  rescind.  To  have  that  effect,  the  implication 
arising  from  the  non-performance  of  the  contract  must  be  in- 
consistent with  its  being  still  in  force.'^ 

Where  the  facts  are  not  disputed,  the  question  of  what  is  a 
reasonable  time  in  which  to  rescind  a  contract  is  a  question  for 
the  court  to  decide  f  and  so  the  court  may  instruct  the  jury  that 
on  the  undisputed  facts  a  given  time  is  or  is  not  reasonable.' 
The  facts  of  each  particular  case  will  control  as  to  the  reason- 
ableness of  time  to  rescind  ;"*  or  the  contract  itself  may  provide 
the  method,  when  it  must  be  followed.^ 

§  597.  Notice  to  rescind. — ^When  a  party  rescinds  a  contract 
he  must  notify  the  other  party.^     And  the  notice  should  be 

10.  Bacon  v.  Green,  36  Fla.  325,  (Mass.)  546;  Bacon  v.  Green,  36 
18  S.  E.  870.  Fla.  325,  18  S.  E.  870. 

11.  Wright  V.  Haskell,  45  Me.  4.  Grymer  v.  Sanders,  93  U.  S. 
489 ;  Gatlin  v.  Wilcox,  26  Ark.  309 ;  55 ;  Carney  v.  Newberry,  24  111. 
ToAvnsend  v.  Hurst,  37  Miss.  679;  203;  Memphis,  etc.  Railroad  Co.  v. 
Hime  v.  Klasey,  9  111.  App.  190.  Neighbors,  51   Miss.   412. 

1.  McTague  v.  Association,  57  5.  McKay  v.  Carrington,  1  Mc- 
N.   J.   L.   427,   31   A.   727;    Fox  v.        Lean,  C.  C.  50. 

Tabel,  66  Conn.  397,  34  A.  101.  1.  Carney   v.    Newberry,    24    111. 

2.  Bacon  v.  Green,  36  Fla.  325,  203;  Henderson  v.  Hicks,  58  Cal. 
18  S.  E.  870;  Gordon  v.  Simonton,  364;  Mullin  v.  Bloomer,  11  Iowa, 
10  Fla.  179;  Holbrook  v.  Burt,  22  360;  Parmlee  v.  Adolph,  28  Ohio 
Pick.    (Mass.)   546.  St.  10. 

3.  Holbrook    v.    Burt,    22    Pick. 

665 


§§  597,  598       TERMINATION  OF  CONTRACTS.        Ch.  20 

served  on  a  week  day;  though  if  the  statute  does  not  make  it 
illegal  to  serve  it  on  Sunday,  it  may  be  served  on  that  day.^ 

It  is  not  always  necessary  to  give  an  express  notice  of  re- 
scission, for  acts  may  indicate  the  intention  to  rescind.  In 
some  case  bringing  a  suit  to  recover  back  money  paid,  when  fol- 
lowed to  its  termination,  is  sufficient  notice  f  but  a  judicial  pro- 
ceeding is  not  always  a  sufficient  notice,  where  it  is  dismissed 
and  the  defendant  has  received  no  damages.*  And  so  when  a 
lessor  under  a  power  contained  in  a  lease,  gives  notice  to  the 
lessee  of  his  intention  to  cancel  the  lease  and  take  possession  at 
the  end  of  the  time  specified  according  to  law,  for  non-pay- 
ment of  rent,  such  notice  is  not  an  offer  which  may  be  accept- 
ed by  the  tenant  and  thus  made  irrevocable,  but  the  lessor  may 
withdraw  it  and  sue  for  the  rest.^  And  so  a  party  who  stipu- 
lated under  seal  to  pay  a  certain  sum  annually  to  another  so 
long  as  the  latter  would  refrain  from  erecting  on  his  land 
buildings  that  might  obstruct  the  former's  windows,  is  bound 
and  cannot  rescind  by  giving  notice.® 

§  598.  Rescission  in  part. — A  contract  cannot  be  rescinded 
in  part  and  ratified  in  part  against  the  wishes  of  the  other 
party.  It  is  the  duty  of  the  injured  party  in  such  case  to  re- 
scind the  contract  as  a  whole  or  not  at  all.''  And  so  where  a 
party  makes  several  contracts  with  another,  he  cannot  claim 
the  benefit  of  such  as  are  profitable  and  repudiate  those  that 
are  unprofitable,  when  they  are  of  the  same  kind.* 

2.  Merritt  v.  Robinson,  35  Ark.  Patrick  v.  Railroad  Co.,  93  N.  Car. 
483;     Benedict     v.     Bachelder,     24        422. 

Mich.  425,  9  Am.  Rep.   130;   Pence  6.  First  Presb.   Church  v.   Bank, 

V.  Langdon,  99  U.  S.  578.  57  N.  J.  L.  27,  31  A.  727. 

3.  Graham  v.  Hollaway,  44  111.  7.  Raymond  v.  Bearnard,  12 
385;  Moore  v.  Rogers,  19  III.  347;  Johns.  (N.  Y.)  274,  7  Am.  Dec. 
Howard  V.  Hunt,  57  N.  H.  467.  317;     Hendricks    v.    Goodrich,     15 

4.  Tuttle  V.  Burgett,  53  Ohio,  Wis.  679;  Bainter  v.  Fults,  15 
498,  42  N.  E.  427,  30  L.  R.  A.  214,  Kan.  323;  Higham  v.  Harris,  108 
53  Am.  St.  Rep.  649.  Ind.  246,  8  N.  E.  255 ;   Baum  Iron 

5.  Warehouse  Co.  v.  Duke,  116  Co.  v.  Burg,  47  Neb.  21,  66  N.  W. 
N.  Car.  202,  21  S.  E.  178.  See,  also,  8;  Wolf  v.  Dietzseh,  75  111.  205. 

8.  Wolcott  V.  Heath,  78  111.  433. 

666 


Cb.    20  RESCISSION    OF   CONTRACT.  §§    598,  599 

The  rescission  must  be  for  tbe  whole  contract  and  not  for 
a  part.'  But  if  tbe  parties  agree,  part  of  tbe  contract  may  be 
rescinded  and  another  part  repudiated.^" 

§  599'  Recovering  back  consideration  paid.  —  When  one 
party  to  an  entire  executory  contract  has  failed  to  perform  on 
bis  part,  and  the  other  party  is  not  in  default,  and  in  a  condi- 
tion to  rescind,  be  may  abandon  the  contract  and  bring  an 
action  of  assumpsit  to  recover  back  what  he  has  paid  there- 
under, whenever  assumpsit  will  lie  independent  of  the  con- 
tract.^ However,  one  who  is  in  fault  and  has  abandoned  bis 
contract  without  just  cause,  cannot  recover.^ 

A  party  cannot  rescind  a  contract  and  at  the  same  time  re- 
tain tbe  consideration  he  has  received.  He  must  place  the 
other  party  in  as  good  a  condition  as  he  was  before  the  con- 
tract was  made  by  an  offer  to  return  what  he  has  received.^ 
Tbe  doctrine  is  well  established  that  no  contract  can  be  re- 
scinded unless  both  parties  can  be  restored  to  the  condition  in 
which  they  were  before  the  contract  was  made.  If,  therefore, 
one  of  tbe  parties  has  derived  an  advantage  from  the  perform- 
ance of  the  contract,  be  cannot  hold  this  and  consider  tbe 
contract  as  rescinded,  but  must  do  all  the  contract  obliges  him 
to  do.'^ 

9.  Raymond  v.  Bearnard,  12  2.  Plummer  v.  Bucknam,  55  Me. 
Johns.  (N.  Y.)  274,  7  Am.  Dec.  105;  Robinson  v.  Raynor,  28  N.  Y. 
317.                                                                   494;   Haslack  v.   Mayers,  2   Dutch. 

10.  Borum  v.  Garland,  9  Ala.  (N.  J.)  284;  Clark  v.  School  Dist., 
452.  29  Vt.  217. 

1.  Nash  V.   Towne,  5   Wall.    (U.  3.  Duncan  v.  Humphries,  58  111. 

S.)    689;    Bacon  v.   Green,  36   Fla.  App.  440;  Wolf  v.  Deitzsch,  75  111. 

325,   18   S.  E.  870;   Browoi  v.  Har-  205;    Merchants,    etc.    Ins.    Co.    v. 

ris,  2  Gray   (Mass.),  359;   Giles  v.  McLain,   48   La.   Ann.    109,   20    So. 

Edwards,  7  Term  R.  181;  Evans  v.  278;   Gassett  v.  Glazier,   165  Mass. 

Givar,   22   Fla.   476;    Fitzgerald   v.  473,  43  N.  E.  193;   Rydon  v.  Wal- 

Allen,    128   Mass.   232;    Warren   v.  cott,    141    111.   649,   31    N.   E.    158; 

Tyler,    81    111.    15;    Chamberlin    v.  Doane  v.  Lockwood,  115  111.  490,  4 

Scott,    33    Vt.    80;    Browm    v.    Ma-  N.  E.  506. 

horin,  39  N.  H.  156 ;  Drew  v.  Clag-  4.  Hunt    v.    Silk,    5    East,    449 ; 

gett,   39   N.   H.   431;    Feay   v.   De-  Poor    v.    Woodward,    25    Vt.    445; 

camp,  15  Serg.  &  R.   (Pa.)   227.  Miner  v.  Bradley,  22  Pick.  (Mass.) 

667 


I§  600,601 


TEKMINATION  OF  CONTKACTS. 


Cll.  20 


§  600.  Affirmance. — Where  a  party  has  a  right  to  rescind, 
he  must  announce  his  purpose  and  adhere  to  it.  If  he  is  silent 
and  continues  to  treat  the  contract  as  binding,  he  will  be  held 
to  have  waived  the  objection,  and  will  be  bound  by  the  con- 
tract. If  he  does  anything  in  recognition  of  its  continued  exis- 
tence he  is  bound  by  it.^ 

But  a  party  cannot  rescind  because  he  has  failed  to  exer- 
cise due  diligence  in  making  the  contract.^  So  the  lessee  of  a 
mill,  after  remaining  in  possession  for  a  year,  cannot  rescind 
the  lease  for  fraudulent  representations  as  to  the  capacity  and 
condition  of  the  mill.^ 


§  601.  Sealed  contracts — To  recover  money  paid. — In  an 

action  of  assumpsit  to  recover  back  money  paid  under  a  con- 
tract alleged  to  have  been  violated  by  the  parties  thereto,  sued 
as  defendants,  and  rescinded  by  the  plaintiff,  the  other  party 
to  it,  the  form  of  action  will  not  be  affected  in  any  way  by  the 
consideration,  whether  the  contract  is  under  seal  or  not  as  to 
lall  the  parties  executing  it,  as  the  suit  is  not  one  on  the  con- 
tract, but  in  assumpsit  to  recover  money  received.* 


458;  Weeks  v.  Robie,  42  N.  H.  316; 
Young  V.  Stevens,  48  N.  H.  133,  97 
Am.  Dec.  592;  Desha  v.  Robinson, 
17  Ark.  228;  Burge  v.  Cedar,  etc. 
Railroad  Co.,  32  Iowa,  101. 

1.  Thomas  v.  Bartow,  48  N.  Y. 
200;  Flint  v.  Wood,  9  Hare,  622; 
Jennings  v.  Broughton,  5  DeG.  M. 
&  G.  139;  Lloyd  v.  Brewster,  4 
Paige  (N.  Y.),  537,  27  Am.  Dec. 
88;  Campbell  v.  Fleming,  1  Ad.  & 
El.  41 ;  Diman  v.  Railroad  Co.,  5 
R.  I.  130;  Grymes  v.  Sanders,  93 
U.  S.  55 ;  Wilson  v.  Irish,  62  Iowa, 


260,  17  N.  511;  Fitzpatrick  v. 
Woodruff,  96  N.  Y.  561;  Pratt  v. 
Philbrook,  41  Me.  132;  Akerly  v. 
Vilas,  21  Wis.  88;  Crane  v.  Kildorf, 
91  111.  567. 

2.  Seton  v.  Slade,  7  Ves.  269; 
Mauser  v.  Davis,  6  Ves.  678;  At- 
wood  V.  Small,  6  CI.  &  F.  338;  Gar- 
rett V.  Burleson,  25  Tex.  44;  Lamb 
V.  Harris,  8  Ga.  546. 

3.  Richardson  v.  Horn,  8  Houst. 
(Del.)  26. 

4.  Bacon  v.  Green,  36  Fla.  325, 
18  S.  E.  870. 


668 


Ch.    20  RESCISSION    OF    CONTRACT.  §§    602,  603 

ARTICLE  II. 

Work  and  Labor. 

Section  602.  Wrongful  Discharge  of  Employe. 

603.  Constructive  Service. 

604.  Services  to  be  Performed  in  the  Future. 

605.  Duty  of  Employe  to  Seek  Other  Work. 

606.  Offer  to  Render  Service. 

607.  Mode  of  Rescission  by  Employer. 

608.  Employing  Another  to  Work  on  Personalty. 

609.  Employing  Another  to  Affix  to  Real  Estate  a  Machine. 

610.  Damages  Recoverable. 

611.  After  Notice  of  Rescission — Duty  of  the   Employe. 

§  6o2.  Wrongful  discharge  of  employe. — A  servant  wrong- 
fully discharged  has  but  two  remedies  growing  out  of  the 
wrongful  act:  1.  He  may  treat  the  contract  of  hiring  as  con- 
tinuing, though  broken  by  the  master,  and  may  recover  dam- 
ages for  the  breach.^  2.  He  may  rescind  the  contract,  in 
which  case  he  can  sue  on  a  quantum  meruit,  for  services 
actually  rendered.^  These  remedies  are  independent  of  and 
additional  to  his  right  to  sue  for  wages,  for  sums  actually 
earned  and  due  by  the  terms  of  the  contract. 

§  603.  Constructive  service.  —  It  has  been  held  by  a  few 
cases,  incorrectly  however,  that  a  servant  wrongfully  dis- 
charged has  his  election  to  sue  for  wages  as  they  become  due 
from  time  to  time,  or  for  damages.      This  doctrine  that  he  can 

1.  Miller  v.  Goddard,  34  Me.  102,  v.  Ins.  Co.,  24  Wis.  630;  Ricks  v. 
56  Am.  Dec.  638;  East  Tennessee,  Yates,  5  Ind.  115;  Cbstigan  v.  Rail- 
etc.  R.  R.  Co.  V.  Staub,  7  Lea  road  Co.,  2  Denio  (N.  Y.),  609,  43 
(Tenn.),  397;  Howard  v.  Daly,  61  Am.  Dec.  758  and  note;  Halloway 
N.  Y.  362,  19  Am.  Rep.  285.  v.  Talbot,  70  Ala.  389;  Webster  v. 

2.  Chamberlin  v.  Morgan,  68  Pa.  Wade,  19  Cal.  291,  79  Am.  Dec. 
St.  168;  King  v.  Steiren,  44  Pa.  St.  218;  Britt  v.  Hays,  21  Ga.  157; 
99,  84  Am.  Dec.  419;  Howard  v.  Pritchard  v.  Martin,  27  Miss.  305; 
Daly,  61  N.  Y.  362,  19  Am.  Rep.  Emmons  v.  Elderton,  4  H.  L.  Cas. 
285;  McDaniel  v.  Parks,  19  Ark.  646;  Dillon  v.  Anderson,  43  N.  Y. 
671;  Isaacs  v.  Davis,  68  Ga.  169;  231;  Hamilton  v.  McPherson,  28 
Fuller  V.  Little,  61   111.  21;   Baker  X.  Y.  76,  84  Am.  Dec.  330. 

669 


§  603  TERMINATION  OF  CONTRACTS.  Ch.  20 

sue  for  wages  is  based  upon  construe uve  service/  This  doc- 
trine that  a  servant  can  sue  from  time  to  time  for  his  vp^ages 
as  thej  would  fall  due,  after  his  wrongful  discharge,  is  opposed 
to  the  great  mass  of  authorities.  It  holds  that  a  person  may 
remain  idle,  and  not  accept  employment  elsewhere,  and  that 
he  cannot  seek  it.  If  a  person  discharged  from  service  may  re- 
cover wages,  or  treat  the  contract  as  still  subsisting,  then  he 
must  remain  idle  in  order  to  be  always  ready  to  perform  the 
service.  The  doctrine  of  constructive  service  is  opposed  to 
principle  and  to  political  economy,  as  it  encourages  idleness 
and  gives  compensation  to  men  who  fold  their  hands  and  de- 
cline service,  equal  to  those  who  perform  their  stipulated  work. 
Though  the  master  has  committed  a  wrong,  the  employe  is  not 
released  from  the  rule  that  he  should  labor ;  and  no  rule  can 
be  sound  which  gives  him  full  wages  while  living  in  voluntary 
idleness. 

This  view  of  constructive  services  has  been  discarded  in 
later  decisions  and  is  not  good  law ;  and  now  a  servant  wrong- 
fully discharged  cannot  recover  wages  as  they  become  due  from 
time  to  time;^  because  if  he  sues  and  recovers  his  wages  for 
past  services,  this  ends  his  recovery  for  future  time,  and  he 
cannot  wait  until  another  period  has  passed  and  then  sue  for 
that  time ;   the  first  suit  for  wages  bars  all  other  suits.^ 

1.  Thompson  v.  Wood,  1  Hilt.  Tisdal,  1  Exeh.  295;  Eldeiton  v. 
(N.  Y.)  96;  Huntington  v.  Rail-  Emmons,  6  C.  B.  178;  Goodman  v. 
road  Co.,  33  How.  Pr.  (N.  Y.)  416;  Pocock,  15  Ad.  &  EL,  N.  S.  582; 
Fowler  v.  Armour,  24  Ala.  194;  Whitaker  v.  Sandifer,  1  Duval 
Armfield  v.  Nash,  31  Miss.  361;  (Ky.),  261;  Chamberlin  v.  Mc- 
Gordon  v.  Brewster,  7  Wis.  355;  Callister,  6  Dana  (Ky.),  352; 
Booge  V.  Railroad  Co.,  33  Mo.  212,  Clark  v.  Marsiglia,  1  Denio  (N. 
82  Am.  Dec.  160;  Gaudell  v.  Pou-  Y.),  317,  43  Am.  Dec.  670  and  note; 
tigney,  4  Camp.  375;  Collins  v.  Durkee  v.  Mott,  8  Barb.  (X.  Y.) 
Price,  4  Bing.  132.  423;    Moody    v.    Leverich,    4    Daly 

2.  Archard  v.  Hornor,  3   Car.  &  (N.  Y.),  801. 

P.   349;    Smith  v.   Hayward,  7  Ad.  3.  Keedy   v.   Long,    71    Md.    385, 

&  El.  544;  Aspdin  v.  Austin,  5  18  A.  707,  5  L.  R.  A.  759  and  note. 
Ad.  &  EL,   N.   S.   671;    Fewings  v. 


670 


Ch.  20 


RESCISSION    OF    CONTRACT. 


§    604 


§  604.  Services  to  be  performed  in  the  future. — It  is  now 
well  settled  that  if  a  person  enters  into  a  contract  for  services, 
to  commence  at  a  future  day,  and  before  that  time  arrives  does 
an  act  inconsistent  with  the  continuance  of  the  contract,  an 
action  may  be  immediately  brought  by  the  other  party;  and 
without  averring  performance,  or  readiness  to  perform.^ 

The  law  with  reference  to  a  contract  to  be  performed  at  a 
future  time,  when  the  party  bound  to  the  performance  an- 
noimces,  prior  to  the  time,  his  intention  not  to  perform  it  is 
this:  1.  The  promisee,  if  he  so  elects,  may  treat  the  notice  of 
intention  as  inoperative,  and  await  the  time  when  the  con- 
tract is  to  be  executed,  and  then  hold  the  other  party  responsi- 
ble for  all  the  consequences  of  non-performance;  in  this  man- 
ner he  keeps  alive  the  contract  for  the  benefit  of  the  other  party 
as  well  as  his  own ;  he  remains  subject  to  all  his  own  obligations 
and  liabilities  under  it,  and  enables  the  other  party  not  only  to 
complete  the  contract,  if  so  advised,  notwithstanding  his  pre- 
vious repudiation  of  it,  but  also  to  take  advantage  of  any  super- 
vening circumstances  which  would  justify  him  in  declining  to 
complete  it.  2.  The  promisee  may,  if  he  so  elects,  treat  the 
repudiation  of  the  other  party  as  a  wrongful  rescission,  and 
may  at  once  bring  his  action  as  on  a  breach  of  it;  and  in  such 
action  he  will  be  entitled  to  such  damages  as  would  have  arisen 
from  the  non-performance  of  the  contract  at  the  appointed 
time ;  subject  to  abatement  in  respect  of  any  circumstances 
which  may  have  afforded  him  the  means  of  mitigating  his  loss.^ 


1.  Hochster  v.  De  La  Tour,  2  El. 

6  Bl.  678;   Frost  v.  Knight,  L.  R. 

7  Exch.  Ill,  reversing  5  Exch.  322; 
Roper  V.  Johnson,  L.  R.-  8  C.  P. 
167;  Burtis  v.  Thompson,  42  N.  Y. 
246,  1  Am.  Rep.  516  and  note; 
Christ  V.  Armour,  34  Barb.  (N.  Y.) 
378;  Howard  v.  Daly,  61  N.  Y.  362. 
19  Am.  Rep.  285;  Danube,  etc.  Co. 
V.  Xenos,  13  C.  B.,  N.  S.  825;  Wil- 
kinson V.  Verity,  L.  R.  6  C.  P.  206. 


Compare  Philpotfs  v.  Evans, 
5  Mees.  &  W.  475:  Ripley  v.  Mc- 
Clure,  4  Exch.  359.  Compare  Dan- 
iels V.  Newton,  114  Mass.  530,  19 
Am.  Rep.  384. 

2.  Frost  V.  Knight,  7  Exch.  111. 
8ee,  also,  Roper  v.  Johnson,  L.  R. 
8  C.  P.  167;  Howard  v.  Daly,  61 
N.  Y.  362,  19  Am.  Rep.  516  and 
note;  Brown  v.  Mullin,  L.  R.  7 
Exch.  323. 


671 


§§  605,  606       TERMINATION  OF  CONTRACTS.        Cll.  20 

§  605.  Duty  of  employe  to  seek  other  work. — After  an  em- 
ployee has  been  wrongfully  discharged,  his  duty  is  to  use 
reasonable  care  and  diligence  in  entering  into  other  employ- 
ment of  the  same  kind,  and  thus  to  reduce  the  damages.^  It 
is  the  duty  of  a  dismissed  servant  not  to  remain  idle,  and  the 
employer  may  show,  in  mitigation  of  damages,  that  the  em- 
ploye might  have  procured  employment.  Prima  facie  this  em- 
ploye is  damaged  to  the  extent  of  the  amount  stipulated  to  be 
paid.  The  burden  of  proof  is  on  the  discharging  party  to 
show  either  that  the  other  has  found  employment  elsewhere, 
or  that  other  similar  employment  has  been  offered  him  and 
declined,  or,  at  least,  that  such  employment  might  have  been 
found.  The  employe  is  not  bound  to  show  affirmatively,  as 
a  part  of  his  case,  that  such  employment  was  sought  for  and 
could  not  be  found.^ 

§  606.  Offer  to  render  service.  —  After  the  employer  has 
wrongfully  rescinded  the  contract  for  labor,  in  order  for  the 
employe  to  recover,  he  must  be  ready  and  willing  to  comply 
with  the  contract  at  the  time  of  the  refusal  to  receive  the 
labor.^  But  it  is  not  necessary  for  the  employe  to  go  through 
the  naked  form  of  offering  to  render  the  service.* 

Tender  of  performance  is  not  necessary  when  there  is  wil- 

1.  Chamberlin  v.  Morgan,  68  Pa.  Dec.  218;  Byrd  v.  Boyd,  4  McCord 
St.  168;  King  v.  Steiren,  44  Pa.  St.  (S.  Car.),  246,  17  Am.  Dec.  740; 
99,  84  Am.  Dec.  419;  Jones  v.  Colburn  v.  Woodworth,  31  Barb. 
Jones,  2  Swan  (Tenn.),  605;  Ful-  (N.  Y.)  381;  Bradshaw  v.  Branan, 
ler  V.  Little,  61  111.  21;  Crescent  5  Rich.  (S.  Car.)  465;  Emmons  v. 
Manuf.  Co.  v.  Manuf.  Co.,  100  Mo.  Elderton,  4  H.  L.  Cas.  646;  Dillon 
325,  13  S.  W.  503;  Isaacs  v.  Davies,  v.  Anderson,  43  N.  Y.  231;  Hamil- 
68  Ga.  169;  Halloway  v.  Talbot,  70  ton  v.  McPherson,  28  N.  Y.  76,  84 
Ala.  389.  Am.  Dec.  330. 

2.  Costigan  v.  Railroad  Co.,  2  3.  Peeters  v.  Opie,  2  Wm.  Saund. 
Denio    (N.   Y.),   609,   43   Am.   Dec.  352,  note. 

758  and  note,  2  Greenl.  on  Evi.  261,  4.  Wallis    v.    Warren,    4    Exch. 

a;  Fuller  V.  Little,  61  111.  21;  Prit-  361;     Levy    v.    Herbert,    7    Taunt, 

chard  v.  Martin,  27  Miss.  3.05;  Mc-  314;     Carpenter    v.    Holcomb,    105 

Daniel  v.  Parks,  19  Ark.  671;  Bar-  Mass.  284;   Howard  v.  Daly,  61  N. 

ker  V.  Ins.  Co.,  24  Wis.  630;  Web-  Y.  362,  19  Am.  Rep.  285. 
ster  V.  Wade,  19  Cal.  291,  79  Am. 

672 


CJh.  20  RESCISSION  or  conteact,  §§  606-608 

ingness  and  ability  to  perform,  and  actual  performance  has 
been  prevented  or  expressly  waived  by  the  parties  to  whom 
performance  is  due.^ 

§  607.  Mode  of  rescission  by  employer. — JSTo  precise  form 
of  words  is  necessary  by  the  employer  to  rescind  the  contract 
for  services.  If  the  obligation  of  the  contract  is  created,  a 
denial  of  its  existence  is  equivalent  to  a  refusal  to  allow  the 
employe  to  go  on  with  the  labor.  The  employer  may  reject 
the  services  indirectly  as  well  as  directly.  The  sole  inquiry 
is,  has  the  employer  done  an  act  inconsistent  with  the  supposi- 
tion that  the  services  continue.  Thus,  if  a  man  promises  to 
marry  a  woman  on  a  future  day,  and  before  that  time  marries 
another,  he  has  rescinded  tlie  contract  with  the  first  woman, 
because  the  act  done  was  inconsistent  with  the  contract  rela- 
tions of  the  parties.^  So  an  agreement  to  marry  "in  the  fall" 
may  be  broken  by  the  promisor  announcing  to  the  woman  in 
October  that  he  will  not  perform  his  contract,  and  she  may  com- 
mence her  action  immediately.^  And  this  rule  is  universal 
and  applies  to  all  contracts  to  be  performed  at  a  future  day,' 
where  there  are  mutual  stipulations. 

§  608.  Employing  another  to  work  on  personalty. — ^Where 
a  person  renounces  his  contract  for  work  to  be  done  on  per- 
sonal property  at  a  certain  price,  the  laborer  cannot  go  on  and 
do  the  work,  and  then  sue  for  the  whole  price.  He  has  no 
right  to  proceed  with  the  work  after  such  rescission,  but  must 
stop,  and  sue  for  damages.^  The  party  employed  cannot  per- 
sist in  working,  though  he  is  entitled  to  the  damages  conse- 

5.  Franchot  v.  Leach,  5  Cow.   (N.  2.  Burtis  v.  Thompson,  42  N.  Y. 

Y.)    506;   Cort  v.  Railway  Co.,   17  246,  1  Am.  Rep.  516  and  note. 

Ad.  &  El.,  N.    S.    127.     See,  also,  3.  Hochster  v.  De  La  Tour,  2  El. 

Nelson  v.  Plimpton,  etc.  Co.,  55  N.  &  Bl.  678;  Howard  v.  Daly,  61  N. 

Y.  480;   Howard  v.  Daly,  61  N.  Y.  Y.  362,  19  Am.  Rep.  285. 

362,  19  Am.  Rep.  285.  4.  Lord  v.  Thomas,  64  N.  Y.  107 ; 

1.  Short  V.   Stone,   8  Ad.  &   El.,  Gibbons  v.  Rente,  51  Minn.  499.  53 

N.   S.   358.      See,  also,   Lovelock   v.  N.  W.  756,  22  L.  R.  A.  80  and  note; 

Franklyn,  8  Ad.  &  El.,  N.  S.  371.  Heaver  v.  Lanahan,  74  Md.  493,  22 

673 


§§    608-610  TERMIIfATION    OF    CONTEACTS.  Ch.    20 

quent  upon  his  disappointment.  So  where  one  has  given  pic- 
tures to  another  to  be  repaired  at  a  price  agreed  upon,  and  the 
former  countermands  his  direction  and  forbids  further  execu- 
tion of  the  work,  after  the  latter  has  commenced  work,  the 
work  must  cease  and  the  workman  may  recover  a  just  recom- 
pense for  such  injury  as  the  party  employed  has  received  on 
account  of  the  breach  of  the  agreement.^  The  party  employed 
has  no  right,  after  rescission,  to  proceed  with  the  work. 
In  all  such  cases  the  just  claims  of  the  party  employed  are 
satisfied  when  he  is  fully  recompensed  for  his  past  perform- 
ance and  indemnified  for  his  loss  in  respect  to  the  part  left  un- 
executed ;  and  to  persist  to  complete  the  work  is  not  consistent 
with  good  faith  towards  the  employer.® 

§  609.  Employing  another  to  affix  to  real  estate  a  machine. 

— And  so  where  one  is  employed  to  furnish  materials  and  per- 
form labor  upon  them  for  the  other  party  to  improve  his  realty, 
and  then  the  contract  is  rescinded  by  the  employer,  the  em- 
ploye cannot  recover  any  part  of  the  contract  price  as  it  is  not 
devisible.^  But  he  may  recover  what  he  has  lost  thereby  or  the 
damages  sustained,  but  he  cannot  go  on  with  the  work  after  the 


§  610.  Damages  recoverable. — It  has  been  laid  down  that 
in  an  action  brought  upon  an  agreement,  full  performance  of 
which  has  been  prevented  by  the  defendant,  the  damages  of 
^the  plaintiff  are  such  profits  as  he  would  have  made  had  the 

A.  263;  Collyer  v.  Moulton,  9  R.  I.  1.  Inehbald    v.    Western,    17    C. 

90,    98    Am.    Dec.    370;    Smith    v.  B.,  N.   S.   733;   Blanch  v.  Cochran, 

O'Donnell,    8    Lea     (Tenn.),    468;  8  Bing.  14. 

Eckeurode  v.  Chemical  Co.,  55  Md.  2.  Hosmer    v.    Wilson,    7    Mich. 

51;    Zuck   V.    McClure,    98    Pa.    St.  294,    74   Am.    Dec.    716;    Butler   v. 

541.  Butler,  77  N.  Y.  472,  33  Am.  Rep. 

5.  Clark  v.  Marsiglia,  1  Denio  648;  Smith  v.  Wheeler,  7  Oreg. 
(N.  Y.),  317,  13  Am.  Dec.  670  and  49,  33  Am.  Dec.  698  and  note; 
note.  Marsh    v.    McPherson,    105    U.    S. 

6.  Clark    v.    Marsiglia,    1    Denio  709. 
(N.  Y.),  317,  319,  43  Am.  Dec.  670 

and  note. 

674 


Ck   20 


RESCISSION    OF    CONTEACT. 


;§  610,611 


contract  been  fnllv  carried  out.^  But  in  many  cases  materials 
for  the  performance  of  the  contract  may  have  been  furnished, 
and  labor  expended  in  good  faith  before  notice  to  stop  has  been 
given,  and  the  materials,  by  the  labor  put  upon  them  for  a  par- 
ticular purpose,  may  be  depreciated  in  value  for  general  pur- 
poses. So  the  plaintiff  cannot  be  fully  indemnified  in  such 
case  without  he  is  repaiid  for  such  labor  and  for  any  loss  sus- 
tained upon  such  materials.^ 


§   6ii.  After  notice  of  rescission— Duty  of  the  employe. — 

It  is  the  duty  of  the  employe,  as  soon  as  due  notice  is  given, 
to  act  in  such  a  manner  as  to  save  the  defendant  from  further 
damage,  so  far  as  it  was  in  his  power,  even  to  the  performance 
of  affirmative  action  on  his  part.^  And  notice  given  to  an 
agent  who  is  authorized  to  stand  in  the  place  of  and  represents 
the  plaintiff  in  his  business,  is  sufficient,  and  after  such  notice 
to  the  agent,  his  principal  must  cease  work  and  save  the  de- 
fendant from  further  damages.* 


1.  Clark  V.  Mayor,  4  N.  Y.  338, 
53  Am.  Dec.  379;  Railroad  Co.  v. 
Howard,  13  How.   (U.  S.)   307. 

2.  Hosmer  v.  Wilson,  7  Mich. 
294,  74  Am.  Dec.  716;  Dillon  v.  An- 
derson, 43  N.  Y.  231. 

3.  Hamilton    v.    McPEerson,    28 


N.  Y.  72,  84  Am.  Dec.  330;  Strauss 
V.  Meertief,  64  Ala.  299,  38  Am. 
Rep.  8;  Chamberlin  v.  Morgan,  68 
Pa.  St.  168 ;  Dillon  v.  Anderson,  43 
N.  Y.  231. 

4.  Dillon  V.  Anderson,   43  N.  Y. 
231. 


675 


§  612  TERMINATION  OF  CONTEACTS.  Ch.  20 

ARTICLE  III. 

Rescission  C'onteolled  by  Condition  Subse;quent. 

Section  612.  Selling  by  Sample. 

613.  Option  to  Purchase. 

614.  Contract  of  Hiring — Employe  Guarantees  Satisfaction. 

615.  Contracts  of  Common  Carriers. 

616.  Act  of  God  that  will  Excuse  a  Common  Carrier. 

617.  Shipment  of  Live  Stock. 

618.  Hiring  Contracts — Implication  of  Discharge. 

619.  Reservation  of  Wages,  Payable  at  Certain  Interval '. 

620.  Extra  Services. 

621.  Reservation  of  Right  to  Terminate. 

622.  No  Limitation  as  to  Term  of  Hiring. 

623.  Notice  of  Termination — Reservation. 

§  6i2.  Selling  by  sample. — Where  there  is  an  executory  con- 
tract for  the  sale  of  goods  warranted  to  be  of  a  particular  quan- 
tity or  description,  they  must  conform  to  the  warranty  or  the 
vendee  is  not  bound  to  receive  or  accept  them.^  And  a  sale  by 
sample  implies  a  warranty  that  the  bulk  of  the  article  shall  cor- 
respond in  quality  with  the  article  exhibited.^ 

If  the  article  does  not  correspond  with  the  warranty  when 
delivered  the  vendee  is  not  merely  justified  in  not  receiving  it, 
but  he  may  receive  it  for  the  purpose  of  examination,  and  if 
found  not  to  be  of  the  quality  or  description  warranted,  or, 
what  is  the  same  thing,  not  to  correspond  with  the  sample,  he 
may  return  it  to  the  vendor,  the  examination  and  return  being 
within  a  reasonable  time.^  And  the  burden  of  proof  as  to 
whether  they  correspond  with  the  sample  or  not,  in  a  suit 
brought  by  the  vendor  for  the  price,  is  on  the  vendor  and  not 
on  the  vendee.* 

1.  Wright  V.  Barnes,  14  Conn.  Motor  Co.  v.  Frisbie,  66  Conn.  67, 
518.  33  A.  604. 

2.  Bradford  v.  Manly,  13  Mass.  3.  Street  v.  Blay,  2  Barn.  &  Ad. 
139,    7    Am.    Dee.    122    and  note;  456. 

Waring    v.    Mason,    18    Wend.     (N.  4.  Merriman     v.     Chapman,     32 

Y.)     425;    Merriman    v.    Chapman,        Conn.  140. 
32   Conn.    146;    C.   and   C.   Electric 

676 


Ch.  20 


RESCISSION    OF    CONTRACT. 


§§  612,613 


The  vendee  will  have  a  reasonable  time  to  examine  and  to  re- 
turn, and  a  failure  to  make  the  examination  within  a  reason- 
able time  may  preclude  him  from  offering  the  property  back, 
rescinding  the  sale,  and  avoiding  payment  on  that  ground ;  but 
in  case  he  keeps  them  he  may  rely  upon  the  breach  of  the  war- 
ranty and  receive  damages.^ 

The  right  to  return  chattels  sold  by  sample  as  not  being 
equal  to  the  sample,  is  a  right  to  return  all  or  none.^ 


§  613.  Option  to  purchase. — An  option  to  purchase  if  the 
vendee  should  so  decide  is  essentially  different  from  an  option 
to  return  the  chattel  if  he  should  not  like  it.  In  one  case  the 
title  will  not  pass  until  the  option  is  determined;  in  the  other 
the  property  passes  at  once  subject  to  the  right  to  rescind  and. 
return.^ 

Where  the  buyer  takes  property  upon  trial  he  is  the  sole 
judge  of  its  merits.  It  is  a  sale  at  his  option  and  he  must 
comply  with  his  part  of  the  agreement.  If  he  does  not  return 
it  within  a  reasonable  time,  the  vendor  may  treat  the  transac- 
tion as  an  absolute  sale.^ 

And  in  case  of  depreciation  of  the  property,  nobody  being 
at  fault,  the  person  who  is  eventually  to  have  the  title  must 
bear  the  loss.^  But  if  the  purchaser  injures  the  property  while 
in  his  possession  he  must  bear  the  loss.^  What  is  a  reasonable 
time  in  which  to  return  the  chattel,  when  the  contract  is  silent 


5.  Underwood  v.  Wolf,  131  111 
425,  23  N.  E.  598,  19  Am.  St.  Rep 
40;  Douglas  Ax  Maiiuf.  Co.  v 
Gardner,  10  Cush.  (Mass.)  88;  Me 
Cormick  v.  Danville,  36  Iowa,  645 
Aultman  v.  Flinn,  34  Iowa,  272 
Mandel  v.  Butler,  21  Minn.  397 
Sugworth  V.  Leffel,  76  Pa.  St.  477 
Fielder  v.  Starkin,  1  H.  Bl.  17 
Poulton  V.  Lattimore,  9  Barn.  & 
Cr.  359;  Pateshall  v.  Tranter,  i 
Ad.  &  El.  103. 

6.  Telford  v.  Albro,  60  111.  App 


359;  Harsfield  v.  Converse,  105  111. 
534. 

1.  Hunt  V.  Wyman,  100  Mass. 
198. 

2.  Dewey  v.  Erie,  14  Pa.  St.  211, 
53  Am.  Dec.  533;  Spickler  v. 
Marsh,  36  Md.  222;  Kimball  v. 
Vroman,  35  Mich.  310,  24  Am.  Rep. 
558;  Bushwell  v.  Bicknell,  17  Me. 
344,  35  Am.  Dec.  262. 

3.  Head  v.  Tattersall,  L.  R.  7 
Exeh.  7. 

4.  Ray  v.  Thompson,  12  Gush. 
(Mass.)    281,  59  Am.  Dec.  187. 


67Y 


§§  613,  614       TERMINATION  OF  CONTRACTS.        Ch.  20 

as  to  this  matter,  depends  upon  the  character  of  the  property 
and  all  the  circumstances  connected  with  the  case.^ 

§  614.  Contract  of  hiring — Employe  guarantees  satisfaction. 

' — ^A  stipulation  is  often  included  in  a  contract  that  the  em- 
ployee shall  give  satisfaction  to  the  employer,  and  in  case  he 
does  not  the  latter  may  discharge  the  former.  The  cases  are 
not  harmonious  as  to  the  question  whether  the  employer  may 
discharge  the  employee  without  judicial  determination  as  to 
right  of  dismissal.  It  is  generally  held  that  whenever  the  con- 
tract is  to  gratify  taste,  serve  personal  convenience  or  satisfy 
individual  preference  in  regard  to  the  employer,  tliat  is,  when- 
ever the  feelings,  taste,  sensibilities  or  judgment  of  the  prom- 
isor are  involved,  he  has  the  absolute  right  to  decide  and  his 
decision  cannot  be  reviewed.^  But  whenever  the  contract  in- 
volves some  definite  purpose  or  end,  of  the  performance  of 
which  others  could  judge  just  as  well  as  the  parties  can,  and 
which  involves  no  consideration  strictly  personal,  the  stipuation 
that  it  shall  be  done  to  the  satisfaction  of  the  party  has  been 
generally  held  not  to  be  controlling.  In  such  case  all  the 
promisor  undertakes  to  do  is  that  he  will  reasonably  and  fairly 
judge,  and  of  course  his  decision  is  subject  to  review.^ 

A  contract  employing  a  servant  not  to  do  a  fixed  and  definite 

5.  Washington     v.     Johnson,     7  115G,   18  L.  R.  A.  644;   Koehler  v. 

Humph.    (Tenn.)    468;   Hickman  v.  Buhl,  94  Mich.  496,  54  N.  W.  157; 

Shimp,  109  Pa.  (St.   16.  Allen    v.    Compress    Co.,    101    Ala. 

1.    Duplex    Saf.    Boiler    Co.     v.  575,    14    So.    362;    Wood    Reap.    & 

Garden,    101    N.    Y.    387,    4   N.    E.  Mow.  Mach.  Co.  v.  Smith,  50  Mich. 

749,   54    Am.    Rep.    709   and   note;  565,  15  N.  906,  45  Am.  Rep.  57. 

Gibson  y.  Carnage,  39  Mich.  49,  33  2.  Falliard  v.   Wallace,   2  Johns. 

Am.   Rep.   351   and   note;    Holfman  (N.  Y. )   395;  Burns  v.  Munger,  45 

V.  Gallaher,  6  Daly    (N.  Y.),  42;  Hun     (N.    Y.),    75;     Brooklyn    v. 

Brown  v.  Foster,  113  Mass.  136,  18  Railroad  Co.,  47  N.  Y.  475,  7  Am. 

Am.  Rep.  463;  Zaleski  v.  Clark,  44  Rep.   469;    Grinnell  v.   Kiralfy,   55 

Conn.   218,  26  Am.  Rep.   446;    Mc-  Hun,  422,  8  N.  Y.  S.  623;   Doll  v. 

Carren      v.      McNulty,      7      Gray  Noble,    116    N.    Y.    230,    22    N.    E. 

(Mass.),    139;    Hart    v.    Hart,    22  406,  5  L.  R.  A.  554,  15  Am.  St.  Rep. 

Barb.    (N.  Y.)    606;   Frary  v.  Rub-  398. 
ber   Co.,   52  Minn.   264,   53   N.   \V. 

6Y8 


Ch.    20  RESCISSION    OF    CONTRACT,  §§    614,  615 

work  but  to  render  personal  services,  general  in  their  nature, 
and  especially  where  the  employment  involves  consideration  of 
fitness,  business  capacity,  integrity,  trust,  and  confidence,  the 
employer's  decision  of  discharge  is  final  if  he  is  not  satisfied.^ 
In  another  class  of  cases  there  must  be  an  actual  cause.  Thus, 
where  a  party  purchases  milk  pans,  and  the  stipulation  was  that 
the  purchaser  was  to  pay  for  them  if  satisfied,  the  purchaser 
has  no  right  to  say  witliout  cause  that  he  was  dissatisfied  and 
would  not  pay  for  the  pans,  because  his  dissatisfaction  must  be 
actual,  not  feigned,  real,  not  merely  pretended.^  And  where  the 
grantee  in  a  deed  judges  as  to  the  title  of  the  land,  whether  good 
or  not,  he  cannot  make  an  arbitrary  decision  not  founded  on 
any  reasonable  ground.^ 

§  615.  Contracts  of  common  carriers.  —  In  the  absence  of 
special  contract  there  is  no  absolute  duty  resting  on  a 
common  carrier  to  deliver  goods  intrusted  to  it  within  what, 
under  ordinary  circumstances,  would  be  a  reasonable  time. 
Not  only  storms  and  floods  and  other  natural  causes  may 
excuse  delay,  but  the  conduct  of  men  may  also  do  so. 
An  incendiary  may  burn  down  a  bridge,  a  mob  may  tear 
up  the  track  or  disable  the  rolling  stock  or  interpose  irre- 
sistible force  or  overpowering  intimidation,  and  the  only  duty 
resting  upon  the  carrier,  not  otherwise  in  fault,  is  to  use  reason- 
able efl^ort  and  diligence  to  overcome  the  obstacle  thus  inter- 
posed, and  to  forward  the  goods  to  their  destination.^  A  com- 
mon carrier  is  not  liable  for  losses  caused  by  the  act  of  God,  by 
the  public  enemy,  by  the  irJierent  defect,  quality  or  vice  of  the 
thing  carried,  by  the  seizure  of  goods  or  chattels  in  its  hands, 
under  legal  process,  by  some  act  or  omission  of  the  owner  of  the 

3.  Frary  v.  Rubber  Co.,  52  Minn.  1.  Wibeit  v.  Railroad  Co.,  12  N. 
264,  53  N.  W.  1156,  18  L.  R.  A.  Y.  245;  Blackstock  v.  Railroad  Co., 
644.  20    N.    Y.    48,    75    Am.    Dec.    372; 

4.  Dagget  v.  Johnson,  49  Vt.  345.  Thayer  v.  Burchard,  99  Mass.  521 ; 
See,  also,  Anvil  Min.  Co.  v.  Humble,  Geismer  v.  Railroad  Co.,  102  N.  Y. 
153  U.  S.  540,  14  S.  Ct.  876.  5r.3,  7  N.  E.  828,  55  Am.  Rep.  837. 

5.  Falliard  v.   Wallace,  2  Joluis. 
(N.  Y.)   395. 

679 


§§  015,  616       TERMINATION  OF  CONTRACTS.        Ch.  20 

goods. ^  So  when  a  common  carrier  is  prevented  by  mob  vio- 
lence which  it  cannot  by  reasonable  efforts  overcome,  a  delay  in 
the  delivery  of  goods  may  be  excused  f  and  it  is  not  liable  for 
the  act  of  God  when  it  uses  due  diligence.* 

Some  courts  construe  the  ''act  of  God"  as  synonymous  with 
"  inevitable  accident,"  or  "  unavoidable  accident ;  "^  but  this 
construction  is  not  accepted  by  all  the  courts,  as  such  accidents 
may  be  caused  by  human  agency,^  which  is  excluded  from  the 
act  of  God.'^ 

A  shipowner  may  be  released  by  the  occurrence  of  an  ex- 
cepted risk  provided  he  uses  due  diligence.* 

§  6x6.  Act  of  God  that  will  excuse  a  common  carrier. — The 

act  of  God  which  will  excuse  a  common  carrier  from  perform- 
ing his  contract,  must  be  the  proximate,  not  merely  the  remote, 
cause  of  the  loss  or  injury  to  the  property  carried.^  Common 
carriers  are  not  bound  to  provide  against  unusual  or  extraor- 
dinary floods,  such  as  have  never  been  known,  and  which  could 
not  have  reasonably  been  foreseen  by  competent  and  skilled  per- 

2.  Parsons  v.  Monteath,  13  Barb.  5.  Crosby  v.  Fitch,  12  Conn.  410, 
(N.  Y.)  353;  Merritt  v.  Earle,  31  31  Am.  Dec.  745;  Blythe  v.  Rail- 
Barb.  (N.  Y.)  38,  29  X.  Y.  115;  road  Co.,  15  Colo.  333,  25  P.  702, 
Hall  V.  Kenfro,  3  Met.  (Ky.)  51;  11  L.  R.  A.  615  and  note,  22  Am. 
Cragin  v.  Railroad  Co.,  51  N.  Y.  St.  Rep.  403;  Neal  v.  Saunderson, 
61,  10  Am.  Rep.  559;  Storer  v.  2  Sm.  &  M.  (Miss.)  572. 
Gordon,  3  Maule  &  S.  308;  Norris  6.  Central  Line  v.  Lowe,  50  Ga. 
V.  Railroad  Co.,  23  Fla.  182,  1  So.  509. 

475,  11  Am.  St.  Rep.  355  and  note;  7.  Fish   v.   Chapman,  2  Ga.   349, 

Southern  Express  Co.  v.  Glenn,  16  46  Am.  Dec.  393. 

Lea    (Tenn.),  472,  1  S.  W.   102.  8.  Geipel  v.  Smith,  L.  R.  7  Q.  B. 

3.  Pittsburg,    etc.    R.    R.    Co.    v.  404. 

Hogen,  84  111.  36,  25  Am.  Rep.  422 ;  9.    New      Brunswick      Steamboat 

Pittsburg,  etc.  R.  R.  Co.  v.  Hallo-  Co.  v.  Tiers,  4  Zab.  (N.  J.)  697,  64 

well,  65  Ind.  188;  Geismer  v.  Rail-  Am.  Dec.  394;  Backhouse  v.  Sneed, 

road   Co.,   102   N.   Y.   503,   7   N.   E.  1  Murphy  (N.  Car.),  173;  Railroad 

828,    55    Am.    Rep.    837;    Haas    v.  Co.    v.    Reeves,    10    Wall.     (U.    S.) 

Railroad  Co.,  81   Ga.   792,  7  N.  E.  176;  Converse  v.  Brainerd,  27  Conn. 

629.  607;    Express    Co.    v.    Jackson,    92 

4.  Black  V.  Railroad  Co.,  30  Neb.  Tenn.  326,  21  S.  W.  666;  Morrison 
197,  46  N.  W.  197;  Nugent  v.  v.  Davis,  20  Pa.  St.  171,  57  Am. 
Smith,  1  C.  P.  Div.  441.  Dec.   695   and  note:    Lang  v.   Rail- 

680 


oil.    20  RESCISSION    OF    CONTRACT.  §§    616,  617 

sons.^"     So  an  unprecedented  storm  may  excuse  a  connnon  car- 
rier in  delivering  a  shipment. ^^ 

§  617.  Shipment  of  live  stock. — A  common  carrier  which 
undertakes  to  transport  live  stock  for  hire  becomes  chargeable 
with  the  duties  and  obligations  which  are  incident  to  that  rela- 
tion.^ But  the  carrier  is  not  an  insurer  of  the  property  as  re^ 
spects  injury  which  it  may  suffer  from  all  causes.  A  common, 
carrier  is  not  an  insurer  in  respect  to  any  injury  unavoidably 
resulting  from  the  essential  nature  of  the  property  itself,  such 
as  the  natural  decay  of  fruit,  although  it  must  use  reasonable 
care  for  its  preservation.  The  common-law  liability  of  the  car- 
rier is  subject  to  some  modifications  arising  from  the  nature 
and  propensities  of  the  animals,  and  their  capacity  for  inflict- 
ing injuries  upon  themselves  and  upon  each  other,  when  live 
stock  is  the  subject  of  transportation.^  In  the  absence  of  a  spe- 
cial agreement,  the  carrier  is  responsible  for  any  injury  which 
can  be  prevented  by  foresight,  vigilance  and  care,  although 
arising  from  the  conduct  of  the  animals.^  In  case  of  injury  to 
live  animals  which  may  be  caused  by  each  other,  or  by  inherent 
liability  to  sickness  and  death  or  self-inflicted  injury  in  case  of 

road   Co.,    154   Pa.    St.    342,   26   A.  Rep.   19;   St.  Louis,  etc.  R.  R.  Co. 

370,  20  L.  R.  A.   360,  35   Am.   St.  v.   Dorman,   72   111.   504;    Powell  v. 

Rep.  846.  Raihoad    Co.,    32    Pa.    St.    414,    75 

10.  Columbus,   etc.   R.   R.   Co.   v.  Am.   Dec.   564. 

Bridges,  80  Ala.  462,  5  So.  864,  11  2.  Moulton    v.    Railroad   Co.,    31 

Am.  St.  Rep.  58  and  note;    Coosa  Minn.  85,  16  N.  497,  47  Am.  Rep. 

River    Steamboat    v.    Barclay,    30  781 ;   Lindsley  v.  Railroad  Co.,  36 

Ala.    126;    Smith   v.   Railroad   Co.,  Minn.  539,  33  N.  W.  7,  1  Am.  St. 

91  Ala.  455,  8  S.  W.  754,  24  Am.  Rep.    692;     Coupland    v.    Railroad 

St.  Rep.  829,  11  L.  R.  A.  619.  Co.,    61     Conn.    531,    23    A.     870; 

11.  Black  V.  Railroad  Co.,  30  Neb.  Selby  v.  Railroad  Co.,  113  N.  Car. 
197,  46  N.  W.  197.  588,   18   S.  E.  88,  37  Am.  St.  Rep. 

1.  Kimball    v.    Railroad    Co.,    26  635;    Missouri,    etc.    R.    R.    Co.    v. 

Vt.  247,  62  Am.  Dec.  567;  Rexford  Fagan,   72   Texas,   127,   13   Am.   St. 

V.    Smith,   52    N.    H.    355,    13   Am.  Rep.  776  and  note,  9  S.  W.  749,  2 

Rep.   42   and   note;    Clark   v.   Rail-  L.  R.  A.   75  and  note, 
road    Co.,    14    N.    Y.    570,    67    Am.  3.  Clarke    v.    Railroad    Co.,     14 

Dec.  205  and  note;   Evans  v.  Rail-  N.   Y.   570,   67   Am.   Dec.   205   and 

road   Co.,    Ill   Mass.    142,    15   Am.  note;    Palmer    v.    Railroad    Co.,    4 

681 


§§  617-619        TERMINATION  OF  CONTEACTS.        C!h.  20 

confinement,  if  the  carrier  does  all  toward  their  safe  carriage 
which  should  be  done,  and  injury  result  no  responsibility  should 
be  fastened  upon  the  carrier.* 

§  6x8.    Hiring    contracts  —  Implication   of   discharge. — In 

every  contract  of  hiring,  there  is  an  implication  that  the  ser- 
vant may  be  discharged  under  certain  circumstances.  If  the 
servant  proves  to  be  incompetent  to  do  the  thing  he  is  employed 
to  do,  and  the  thing  he  represents  himself  qualified  to  do,  the 
employer  has  the  undoubted  right  to  dismiss  him  and  thus  ter- 
minate the  contract.^  So  where  a  servant  either  neglects,  or 
for  want  of  capacity  makes  mistakes  about  his  master's  business 
detrimental  to  the  latter's  interest,  the  latter  may  discharge  him 
and  need  not  wait  until  the  mistakes  of  the  servant  work  great 
damages  to  him.^ 

The  employe  is  bound  to  serve  the  employer  faithfully  and 
to  refrain  from  doing  any  act  knowingly  and  willingly  which 
may  affect  injuriously  the  business  of  his  employer ;  if  he  does 
otherwise,  the  employer  may  terminate  the  contract.'^ 

§  619.  Reservation  of  wages  payable  at  certain  intervals. — 
The  reservation  of  wages,  payable  monthly  or  weekly,  will  not 
control  the  contract  so  as  to  destroy  its  entirety,  when  the  par- 
ties have  expressly  agreed  for  a  specified  term,  as  for  a  year; 
but  if  the  payment  of  monthly  or  weekly  wages  is  the  only  cir- 
cumstance from  which  the  duration  of  the  contract  is  to  be  in- 
ferred, it  will  be  taken  to  be  a  hiring  for  a  month  or  a  week.^ 

Mees.  &  VV.  749;  Boyce  v.  An-  755;  Callo  v.  Brouncker,  4  Car.  & 
derson,  2  Pet.    (U.  S.),   150.  P.   518;   Leatherberry    v.    Odell,    7 

4.  Chicago,    etc.    R.    R.    Co.    v.        Fed.  Rep.  641. 

Abels,  60  Miss.  1017.  7.  Nichols     v.     Hantyn,     2     Esp. 

5.  Harmer  v.  Cornelius,  94  Eng.  732;  Lacy  v.  Osbaldiston,  8 
C.  L.  236;  Keedy  v.  Long,  71  Md.  Car.  &  P.  80;  Jaflfray  v.  King.  34 
385,  18  A.  707,  5  L.  R.  A.  759  and  Md.  220;  Express  Co.  v.  Trego,  35 
note;    Beeston  v.   Caller,   2   Car.   &  Md.  47. 

P.    607;    Fillieuk   v.    Armstrong,    7  1.  King    v.    Birdbrooke,    4    Term 

Ad.  &  El.  557.  R.  245;   King  v.  Toney,  2  Term  R. 

6.  Newman    v.    Reagon,    63    Ga.        453;   King  v.  Inliabitants,  12  East, 

682 


Cll.    20  RESCISSION    OF    CONTKACT.  §§    619,  620 

If  the  servant  fails  to  perform  his  part  of  the  contract,  and 
is  discharged  before  the  time  of  the  periodical  payment  of  his 
wages  arrives,  he  can  recover  nothing  for  the  broken  period  of 
service  "vvhen  the  contract  is  entire,  because  the  contract  is 
entire,  and  the  performance  of  the  services  for  the  whole  time 
agreed  upon  Avas  in  the  nature  of  a  condition  precedent  to  his 
right  to  recover  for  wages." 

But  a  contract  for  service  "at  a  salary  of  $2,500  per  annum" 
is  not  a  contract  for  any  definite  time  and  at  a  fixed  price,  the 
complete  performance  of  which  is  a  condition  precedent  to  a 
right  to  compensation.  It  is  but  a  stipulation  of  the  rates  at 
which  the  employe  is  to  be  compensated  for  the  services  per- 
formed. He  is  not  bound  to  serve  for  any  definite  time  to  en- 
title him  to  compensation.^ 

§  620.  Extra  services. — It  is  the  general  rule  in  agencies, 
that  where  a  principal  has  an  agent  employed  at  an  agreed 
compensation,  and  the  principal  confers  on  him  additional  pow- 
ers which  involve  greater  duties,  with  no  stipulation  for  addi- 
tional compensation,  he  cannot  recover  extra  wages  for  the 
additional  services,  unless  a  custom  fixes  it  otherwise.* 

In  building  contracts  where  there  is  a  deviation  from  the 
original  plan,  the  rule  is,  that  if  the  plan  is  wholly  changed, 
or  so  much  so  that  the  work  cannot  be  traced  by  the  contract, 
the  work  must  be  paid  for  according  to  value  and  not  by  tlie 
contract.^      So  after  an  agency  is  terminated,  if  the  former 

351;   Beach  v.  Mullen,  34  N.  J.  L.  Mees.  &  W.  112;   Libhart  v.  Wood, 

343;  Evans  v.  Railroad  Co.,  24  Mo.  1    Watts   &   S.    (Pa.)    265,   37   Am. 

App.    114;    Thomas    v.    Hatch,    53  Dec.  461;    Singer   v.  McCormick,  4 

Wis.   296,    10   N.    393;    Babcock   v.  Watts  &   S.    (Pa.)    266. 

Moore,    62    Md.    161;    McCullough  3.  llaney    v.    Caldwell,    35    Ark. 

Iron  Co.  V.  Carpenter,  67  Md.  554,  15G. 

11  A.  176;  Prentiss  v.  Ledyard,  28  4.  United  States  v.  McDaniel,  7 

Wis.   131.  Pet.    (U.   S.)    1;    Moreau  v.   Dum- 

2.  Turner  v.  Robinson,  6  Car.  &  agene,  20  La.  Ann.  230;  Succession 

P.   15;    Ridgway  v.   Market  Co.,   3  of  Jackson,  47  La.  Ann.  1089,  17  So. 

Ad.  &  El.  171;   Lilley  v.  Ehvin,  11  598. 

Q.    B.    742;    Turner    v.    Mason,    14  5.  Add.   on   Cont.   555.  870. 


683 


§§  620-622        TERMINATION  OF  CONTRACTS.        Cll.  20 

agent  is  still  employed  to  do  other  work  he  is  entitled  to  recover 
what  the  time  so  occupied  and  the  services  so  rendered  are 
reasonably  worth.^ 

§  621.  Reservation  of  right  to  terminate. — When  the  right 
to  terminate  a  contract  on  notice,  is  reserved  without  any  fraud 
or  mistake,  but  with  the  actual  knowledge  and  consent  of  the 
parties  to  the  contract,  it  is  as  valid  in  law  as  any  other  clause 
of  the  instrument,  and  the  courts,  when  called  upon,  will 
enforce  it,  unless  to  do  so  would  be  manifestly  contrary  to 
equity  and  good  conscience.^ 

Thus,  where  parties  contract  to  manufacture  jars  under  a 
license  of  patentee,  to  be  teraiinated  after  thirty  days  from 
notice,  the  courts  will  enforce  it.^ 

And  a  contract  of  hiring  by  the  year  may  be  terminated 
within  the  year  upon  notice  by  one  of  the  parties  to  the  other, 
if  that  condition  is  inferable  as  a  part  of  the  contract  from 
their  negotiation,  or  from  usage  known  to  them  and  under- 
stood to  be  applicable  to  such  arrangement^ 

§  622.  No  limitation  as  to  term  of  hiring. — The  rule  of  hir- 
ing without  express  contract  where  the  service  is  continued  for 
a  long  time,  is  that  the  hiring  will  be  understood  to  be  by  the 
year,  unless  circumstances  and  the  dealing  of  the  parties  indi- 
cate a  less  period  of  time.^  But  when  there  is  no  stipulation 
as  to  the  duration  of  the  employment  which  is  not  continued 
for  a  long  time,  and  no  custom  to  control,  the  principal  may 
discharge  his  agent  at  any  time ;  but  this  power  to  revoke  may 

6.  Attrill  V.  Patterson,  5  Md.  Fitzpatrick  v.  Woodruff,  96  N.  Y. 
228;  Pritehet  v.  Badger,  87  Eng.  561;  Patrick  v.  Railroad  Co.,  93  N. 
C.  L.  295;  Tombs  V.  Alexander,  101  Car.  422;  Thayer  v.  Allison,  109 
Mass.  256,  3  Am.  Rep.  349;  Walker  111.  180. 

V.  Tyrrel,  101  Mass.  257,  3  Am.  Rep.  8.  Dick   v.    Ireland,    130   Pa.    St. 

352;    Coffin   V.   Landis,   46   Pa.    St.  299,  18  A.   135. 

426.  9.  Patterson   v.   Manuf.   Co.,    106 

7.  Morrissey  v.  Broomal,  37  Neb.  Mass.  56. 

766,   56   N.   W.   383;    Fitzgerald  v.  1.  Ennis  v.  Palace  Car  Co.,   165 

Allen,  128  Mass.  232;   Dick  v.  Ire-        111.  164,  46  N.  E.  439. 
land,   130  Pa.   St.   299,   18  A.  735; 

684 


Ch.    20  RESCISSION    OP    CONTRACT.  §    622 

be  restrained  by  express  stipulation  or  unless  the  hiring  is  for 
a  valuable  consideration.  Thus,  when  one  as  an  agent  for 
another  contracts  to  sell  lands  of  the  latter,  in  consideration  of 
one-half  the  net  proceeds  of  the  sale,  and  there  is  no  stipulation 
in  the  contract  as  to  tlie  duration  of  the  employment,  either 
party  may  terminate  the  contract  at  any  time,  even  without 
notice;^  and  this  may  be  done  by  parol  where  the  agency  is 
conferred  by  an  instrument  under  seal  ;^  and  this  may  be  done 
though  the  face  of  the  instrument  says  the  agency  is  irrevoca- 
ble/ So  when  a  party  is  hired  for  a  time  not  exceeding  five 
years,  the  minimum  term  is  not  defined  and  is  necessarily  at 
will  of  either  party  ;^  when  parties  have  entered  into  written 
engagements,  with  express  stipulations,  it  is  manifestly  not 
desirable  to  extend  them  by  implication ;  the  presumption  be- 
ing that  having  expressed  some,  they  have  expressed  all  the 
conditions  by  which  they  intend  to  be  bound  under  that  instru- 
ment, and  the  court  should  not  add  to  the  obligations  by  which 
the  parties  have  bound  themselves.' 

In  England  there  is  a  class  of  contracts  for  the  employment 
of  servants  where  the  law  presumes  the  contracts  to  be  a 
yearly  or  monthly  employment,  though  nothing  is  said  of  the 
duration  of  service.  They  relate  to  contracts  of  hire,  of  menial, 
domestic,  and  husbandry  servants.  They  are  so  construed  be- 
cause such  hirings  are  customarily  for  a  year  or  a  month,  and 
the  English  courts  recognize  that  custom;''  but  in  the  United 
States  it  is  doubtful  if  any  such  custom  prevails. 

2.  Coffin  V.  Landis,  46  Pa.  St.  4.  McGregor  v.  Gardner,  14  Iowa, 
426.  See,  also,  Smart  v.  Sanders,  326;  Walker  v.  Denison,  86  III. 
5  Man.   Gr.   &   S.   895;    Peacock  v.        142. 

Cummings,  46  Pa.  St.  434;  Walker  5.  Peacock  v.  Cummings,  46  Pa. 

V.  Denison,  86  111.   142;   Conrey  v.  St.  434. 

Brandegee,  2  La.  Ann.   132;  Trum-  6.  Aspden  v.  Austin,  5  Ad.  &  El., 

bull     V.     Nicholson,     27     III.     149;  N.  S.  671 ;  Dunn  v.  Sayles,  5  Ad.  & 

Phillip  V.  Howell,  60  Ga.  411.  El.,  N.  S.  685. 

3.  Blackstone  v.  Butteinon,  53  7.  Huttman  v.  Boulnois,  2  Car. 
Pa.  St.  266,  91  Am.  Dec.  203;  &  P.  510;  Fawcett  v.  Cash,  5  Barn. 
Brookshire  v.  Brookshire,  8  Ired.  &  Ad.  907 ;  Holcroft  v.  Barber,  1 
(N.  Car.)   74,  47  Am.  Dee.  341  and 

note. 

685 


§  623  TERMINATION  OF  CONTEACTS.  Ch.  20 

§  623.  Notice  of  termination — Reservation. — To  terminate 
a  contract  in  which  there  is  a  stipulation  that  it  may  cease  by 
notice  of  either  party,  the  notice  must  be  clear  and  unequivocal  ;^ 
and  a  failure  to  give  such  notice  will  not  discharge  the  con- 
tract,^ where  a  specific  contract  to  pay  a  certain  sum  for  a  year, 
provides  that  the  employer  may  dismiss  the  employe  at  any  time 
during  the  year  upon  giving  a  month's  notice,  and  the  latter  is 
so  dismissed,  the  contract  is  not  violated  or  rescinded,  and  the 
employe  must  recover  upon  it,  and  cannot  resort  to  a  quantum 
meruit  action.^ 

Car.  &  K.  4.     See,  aiso,  Butterfleld  dine  Press  Co.  v.   Estes,  75  Mich. 

V.  Merlin,  3  Car.  &  K.  163;  Chitty  100,  42  N.  W.  667. 

on    Cont.    502;    Addison    on    Cont.  2.  Bour  v.  Kimball,  46  111.  App. 

431.  327. 

1.  Crescent  Manuf.  Co.  v.  Manuf.  3.  Jenkins  v.  Long,  8  Md.  132. 
Co.,  100  Mo.  325,  13  S.  W.  503;  Al- 


680 


CHAPTER  XXI. 

Statnte    of    Limitations. 


ARTICLE  I. 

Discharge  by  Lapse  of  Time. 

Section  624.  At  Law. 

625.  In  Equity. 

626.  Gross  Laches. 

627.  Rebuttal  of  Presumption — Continuing  Contract. 

§  624.  At  law. — Lapse  of  time  after  a  debt  is  contracted  is 
always  material,  as  to  its  payment  irrespective  of  the  statute 
of  limitations;  and  the  doctrine  is  that  payment  of  any  debt, 
specialty  or  judgment,  will,  in  a  case  where  there  is  no  recogni- 
tion of  it  by  the  debtor,  be  presumed  after  the  delay  of  twenty 
years.^ 

The  presumption  of  payment,  which  in  reference  to  debts 
not  embraced  in  the  statute  of  limitations,  arises  after  the 
lapse  of  twenty  years,  is  not  a  presumption  of  law,  that  is,  a  rule 
which  the  court  itself  may  apply,  but  is  a  presumption  of  fact, 
recognized  by  the  law,  from  which  a  conclusion  ought  to  be 
deduced  by  a  jury.^  At  common  law  it  is  a  presumption  that 
payment  of  a  debt,  even  one  due  by  specialty  where  it  has  been 

1.  Colsell  V.  Budd,  1  Gamp.  27;  Hillary  v.  Waller,  12  Ves.  239; 
Morrow  v.  Robinson,  4  Del.  Ch.  Bailey  v.  Jackson,  16  Johns.  (N. 
521;  Gaines  v.  Miller,  111  U.  S.  Y.)  210,  8  Am.  Dec.  309 ;  Brubaker 
395,  4  S.  Ct.  426;  Rowland  v.  v.  Taylor,  76  Pa.  St.  83;  Knight  v. 
Windley,  86  N.  Car.  36.  McKinney,  84    Me.  107,  24  A.  744; 

2.  Stover  v.  Duren,  3  Strob.  (S.  Walker  v.  Emerson,  20  Tex.  706,  73 
Car.)  450;  Boyce  v.  Lake,  17  S.  Am.  Dec.  207;  Atkinson  v.  Dance, 
Car.  481,  43  Am.  Rep.  618;  Shu-  9  Yerg.  (Tenn.)  424,  30  Am.  Dec. 
brick   V.   Adams,   20    S.      Car.   49;  422. 

687 


§§  624,  625       TERMINATION  OF  CONTRACTS.        Ch.  21 

■unclaimed  and  without  recognition  for  twenty  years  in  the 
absence  of  evidence  to  the  contrary,  has  been  made.  And  this 
common  law  presumption  is  independent  of  and  unaffected  by 
the  statute  of  limitations.^ 

Hence,  early  in  England  and  in  this  country,  in  cases  out- 
side of  the  statute,  the  courts  had  resort  to  presumption  to  take 
the  place  of  evidence  and  frequently  of  belief  as  a  general  com- 
mon law  principle.* 

A  conflict  of  decisions  exist  in  England  which  is  due  to  the 
different  views  in  regard  to  the  ground  of  limitations.  One 
line  of  decisions  is  based  on  the  theory  of  presumption  of  pay- 
ment, as  was  the  common  law  limitation ;  the  other  theory  on 
the  impolicy  in  suffering  debts  to  be  unsettled  for  a  long  period 
of  time,  and  the  danger  of  injustice  in  the  enforcement  of  State 
claims.  The  question  is  whether  a  statute  of  limitations  is  one 
of  presumption  or  of  repose.  If  it  be  one  of  presumption  of 
payment,  it  is  overcome  by  whatever  will  rebut  a  presumption 
of  payment,  and  anything  will  do  this  which  implies,  or 
amounts  to  an  acknowledgment,  that  the  debt  has  not  been 
paid.  So  the  slightest  acknowledgment  will  take  the  case  out 
of  the  statute.  But  if  it  be  a  statute  of  repose,  it  remains  a 
bar  to  the  enforcement  of  a  debt  within  its  provisions,  unless 
the  debtor  voluntarily  renounces  its  benefit  and  makes  a  new 
promise  to  pay  the  old  debt.^  The  prevailing  theory  in  Eng- 
land and  in  the  United  States  is,  that  the  statute  of  limita- 
tions is  one  of  repose.  So  whenever  the  text  speaks  of  pre- 
sumption, it  has  reference  to  the  common-law  doctrine  which 
held  that  it  might  be  presumed  that  payment  had.  been  made 
after  long  lapse  of  time. 

§  625.  In  equity. — A  court  of  equity  applies  the  rules  of 
laches  according  to  its  own  ideas  of  right  and  justice,  and  the 
courts  have  never  prescribed  any  specific  period  applicable  to 

3.  Carr    v.    Dings,    54    Mo.    95;  4.  Hillary    v.    Walter,     12    Ves. 

Clemens  v.   Wilkinson,   10  Mo.  97;  267. 

Williams  v.  Mitchell,  112  Mo.  300,  5.  Truman    v.    Fenton,    1    Cowp. 

20  S.  W.  647.  548. 

688 


Oh.  21  STATUTE  OF  LIMITATIONS.       §§  625,  626 

every  case,  like  the  statute  of  limitations;  and  what  constitutes 
a  reasonable  time  within  which  suit  must  be  brought  depends 
upon  the  facts  and  circumstances  of  eacli  particular  case.^  And 
this  rule  is  peculiarly  applicable  where  the  property,  the  sub- 
ject of  litigation,  is  subject  to  rapid  or  frequent  changes  in 
value,  as  stocks,  oil  wells,  mining  property  and  the  like/ 

§  626.  Gross  laches. — It  is  an  inherent  doctrine  of  the  courts 
of  equity  to  refuse  relief  where  there  has  been  gross  laches  in 
prosecuting  rights,  or  long  and  unreasonable  acquiescence  in  the 
assertion  of  adverse  rights.  And  the  principle,  founded  as  it 
is  upon  consideration  of  natural  justice  and  public  policy,  is 
always  firmly  enforced,  especially  in  cases  involving  transac- 
tions to  which  immediate  parties  are  dead.^ 

Where  a  party  injured  by  fraud  is  in  ignorance  of  its  exist- 
ence, the  duty  to  commence  proceedings  arises  only  upon  dis- 
covery.^ But  the  party  must  distinctly  state  in  his  allegations, 
and  prove  at  the  hearing,  the  time  of  the  discovery  and  what  the 
discovery  was,  so  that  the  court  may  really  see  whether  by  the 
exercise  of  ordinary  diligence,  the  discovery  might  not  have 
been  made  before.^ 

The  law  is  well  settled  that  where  the  question  of  laches  is 

6.  BrowTi  V.  Buena  Vista  Co.,  95  Wis.  662,  45  N.  W.  532;  Galway  v. 
U.  S.  157,  160;  Wood  v.  Carpenter,  Railroad  Co.,  128  N.  Y.  132,  153,  28 
101  U.  S.  140;   Twin  Lick  Oil  Co.       ]nJ.  E.  479,  13  L.  R.  A.  788. 

V.  Marbury,  91  U.  S.  587;  Rogers  v.  1.  Harrison  v.  Gibson,  23  Gratt. 

Van  Nortwick,  87  Wis.  414,  58  N.  (Va.)    212,  223;   Smith  v.  Clay,  3 

W.    757;    Rogers    v.    Saunders,    16  Bro.  C.  C.  639,  n;  Hatcher  v.  Hall, 

Me.  92,  33  Am,  Dec.  635;   Patter-  77    Va.    573;    Carr   v.    Chapman.   5 

Bon  V.  Martz,  8  Watts    (Pa.),  374,  Leigh  (Va.)   176;  Hill  v.  Umberger, 

34   Am.    Dec.   474;    Southcombe   v.  77  Va.  653;  Defiance  Water  Co.  v. 

Bishop,  6  Hare,  213;  Eads  v.  Wil-  Defiance,  68  Ohio  St.  520,  67  N.  E. 

Hams,  4  DeG.  M.  &  G.  674;  Daggers  1052. 

V.  Van  Dyck,  37  N.  J.  Eq.  130;  Hall  2.  Maeder    v.    Norton,    11    Wall. 

V.  Denckla,  28  Ark.  506;  Trader  v.  (U.  S.)    458;    Kilbourn  v.  Sunder- 

Jarvis,  23  W.  Va.  100.  land,  130  U.  S.  518,  9  S.  Ct.  594. 

7.  Twin  Lick  Oil  Co.  v.  Marbury,  3.  Stearns  v.  Page,  7  How.  (  V. 
91  U.  S.  587;  Johnston  v.  ]\lining  S.)  819;  Badger  v.  Badger,  2  Wall. 
Co.,   148  U.   S.  360,  370,   13  S.   Ct.  ( U.  S.)  87,  95. 

585.     See,  also.  Combs  v.  Scott,  76 

689 


§§  626,  627       TERMINATION  OF  CONTRACTS.        Oh.    21 

in  issue,  the  plaintiff  is  chargeable  with  such  knowledge  as  he 
might  have  obtained  upon  inquiry,  provided  the  facts  already 
known  by  him  were  such  as  to  put  upon  a  man  of  ordinary  in- 
telligence the  duty  of  inquiry.*  And  the  duty  is  more  peremp- 
tory where  the  property  itself  is  of  uncertain  value,  and  consid- 
erable expenditures  are  b-^ang  made,  and  it  is  liable  to  greatly 
increase  in  value.  In  such  cases  the  court  looks  with  disfavor 
upon  the  claims  of  those  who  have  waited  to  decide,  when  the 
danger  is  over,  which  has  been  at  the  risk  of  another,  to  come 
in  and  claim  the  profits  of  the  event.^  Poverty  or  pecuniary 
embarrassment  is  not  a  sufficient  excuse  for  postponing  the  as- 
sertion of  one's  rights.^ 

§  627.  Rebuttal  of  presumption  —  Continuing  contracts. — 
The  lapse  of  twenty  years  raises  a  presumption  of  payment  at 
common  law  as  to  contracts,  even  sealed  instruments,  which, 
though  not  a  presumption  of  law,  and  not  therefore  conclusive, 
yet  it  is  a  presumption  of  fact  which  has  acquired  an  artificial 
force,  subject  to  be  rebutted ;  but  the  facts  relied  on  for  this  re- 
buttal must  be  stronger  than  mere  belief  deduced  from  the 
weight  of  testimony  being  on  that  side.  They  must  be  of  a 
character  which  would  revive  a  contract  bound  by  the  statute 
of  limitations.^ 

Whether  the  statute  has  run  often  comes  into  consideration 
in  cases  of  service  in  a  family.  Thus,  in  an  action  against 
administrators  of  a  decedent's  estate  for  work  and  labor 
performed  by  the  plaintiff,  the  rule  was  announced  if 
plaintiff   performed   labor   for   the   intestate   under   an   agree- 

4.  Wood  V.  Carpenter,  101  U.  S.  6.  Hayward  v.  Bank,  96  U.  S. 
141;  Kennedy  v.  Green,  3  Myl.  &  618.  See,  also,  Rogers  v.  Van 
K.  699;  Erlanger  v.  Phosphate  Co.,  Nortwick,  87  Wis.  414,  58  N.  W. 
L.  R.  3  App.  Cas.  1231;  Carr  v.  757;  Voight  v.  Raby,  90  Va.  799, 
Hilton,    1    Curt.    C.    C.    390,    394;  20  S.  E.  824. 

Buckner  v.  Calcote,  28  Miss.  432;  1.  Boyce  v.  Lake,  17  S.  Car.  481, 

Johnston  v.  Mining  Co.,  148  U.  S.  43  Am.  Rep.  618;  Williaume  v. 
370,  13  S.  Ct.  585.  Gorges,   1   Camp.  217. 

5.  Cox    V.    Montgomery,    36    111. 
396. 

690 


Ch.  21 


STATUTE    OF    LIMITATIONS. 


627 


ment  to  be  paid  therefor,  without  specifying  at  Avhat  time 
the  payment  should  be  made,  or  how  long  the  labor 
should  continue,  the  statute  of  limitations  would  not  begin 
Ito  run  until  the  labor  was  ended ;  that  there  being  an  entire 
Qontract  to  serve  for  an  indefinite  period,  the  rule  that  in  an 
action  on  account,  when  all  items  of  account  are  on  one  side, 
the  fact  that  some  items  are  within  the  period  of  limitation, 
does  not  take  the  others  of  a  longer  sta'nding  out  of  the  opera- 
tion of  the  statute,  would  not  apply  to  such  action  upon  an 
entire  continuing  contract.^  Such  a  continuing  contract  may 
be  an  implied  contract,  and  the  same  rule  will  apply  to  it.^  In 
ijhe  application  of  this  rule  that  the  contract  is  a  continuing 
one  and  therefore  the  statute  of  limitations  does  not  begin  to 
run  until  the  work  is  ended,  applies  to  an  implied  contract  the 
same  as  to  a  contract  expressed.*  In  New  York  the  rule  is  dif- 
ferent, and  an  action  on  such  entire  continuing  contract  is 
treated  as  if  upon  an  account  of  distinct  items  all  on  one  side, 
and  the  fact  that  some  items  are  within  the  period  of  limita- 
tion does  not  take  the  others  of  longer  standing  out  of  the  opera- 
tion of  tlie  statute.^ 


2.  Littler  v.  Smiley,  9  Ind.   116. 

3.  Crampton  v.  Logan,  28  Ind. 
App.  405,  63  N.  E.  50;  Knight  v. 
Knight,  6  Ind.  App.  268,  33  N.  E. 
456. 

4.  Schoonover  v.  Vachou,  121 
Ind.    3.    22    N.    E.    777:    Bartel    v. 


Mathias,  19  Oreg.  482,  24  P.  918; 
Hickam  v.  Hickam,  46  Mo.  App. 
496;  O'Brien  v.  Sexton,  140  111. 
517,  36  N.  E.  461;  Frost  v.  Tarr. 
53  Ind.  390. 

5.  In  re  Gardner,  103  N.  Y.  533, 
9  N.  E.  306,  57  Am.  Rep.  768. 


091 


§  628  TERMINATION  OF  CONTKACTS.  Clh.  21 

AKTICLE  II. 

Application  of  Statute. 

Section  628.  Beginning  to  Run. 

629.  Continuing  to  Run. 

630.  Trusts — Unpaid  Subscription. 

631.  Death  of  Ancestor. 

632.  Absence  of  Debtor  from  the  State. 

633.  Absence  of  Creditor  from  the  State. 

634.  Joint  Debtor. 

635.  Surety's  Liability. 

636.  Statutory  Provisions. 

637.  Waiver  of  the  Statute. 

638.  What  Law  Governs. 

§  628.  Beginning  to  run — The  statute  of  limitations  begins 
to  run  from  the  time  when  the  right  of  action  accrues.^  Thus, 
lon  a  deposit  of  money  to  be  kept  until  demanded,  no  action 
/accrues  until  demand  is  made.^  But  a  promise  to  pay  a  note 
on  demand,  such  may  be  brought  immediately  because  the  action 
has  accrued  and  the  beginning  of  a  suit  is  a  sufficient  demand, 
and  the  statute  begins  to  run  from  the  date  of  the  promise.' 
iStatutes  of  limitation  do  not  run  against  the  United  States  and 
'the  States  except  where  it  is  enacted  that  it  shall  so  run  ;^  but 
municipal  corporations  are  not  generally  excepted,^  and  they 
may  plead  it.® 

When  the  hiring  of  a  party  is  by  the  month,  salary  payable 
at  the  end  of  each  month,  the  statute  begins  to  run  against  the 

1.  Odlin  V.  Greenleaf,  3  N.  H.  McCrary,  C.  C.  563 ;  Swann  v.  Lind- 
270;    Withers  v.   Richardson,   5   T.        sey,  70  Ala.  507. 

B.  Mon.    (Ky. )   94;  Jones  v.  Jones,  5.  Oxford  v.   Columbia,   38   Ohio 

91  Ind.  378;  McMichael  v.  Carlyle,  St.  87;   Gaines  v.  Hot  Springs,  39 

53  Wis.  504,  10  N.  656.  Ark.  262;   Forsyth  v.  Wheeling,  19 

2.  Zuek  v.  Gulp,  59  Cal.  142.  W.    Va.    318;     Coleman    v.    Thur- 

3.  Ardress's   Appeal,   99    Pa.    St.  mond,  56  Tex.  514. 

421;    Farquhar   v.   Morris,   7   Term  6.  Board    v.    Blodgett,     155    111. 

R.  124.  4H,  40  N.  E.  1025,  31  L.  R.  A.  70, 

4.  United   States   v.   Co:- 1    Co.,   5        40  Am.  St.  Rep.  348. 

692 


Cll.    21  STATUTE    OF    LIMITATIONS.  §§    628,  629 

right  of  action  for  each  month's  services  on  tJie  first  day  of 
each  succeeding  month.' 

The  rule  as  affecting  retainers  of  and  services  due  to  attor- 
neys at  law  is  this : 

1.  Where  an  attorney  is  conducting  a  single  suit,  the  statute 
will  not  begin  to  run  until  the  end  of  the  suit  or  the  termination 
of  the  retainer  in  some  other  mode. 

2.  When  the  attorneys  are  regularly  employed  at  a  salary, 
given  for  advice  and  legal  superintendence,  and  other  services 
rendered  from  day  to  day,  they  stand  upon  the  same  footing  as 
other  salaried  employes,  so  far  as  the  statute  affects  them. 

3.  Ordinarily  when  a  man  is  employed  under  a  general 
agreement,  fixing  no  term  of  service,  but  he  continues  in  ser- 
vice a  long  time,  his  hiring  will  be  treated  as  a  hiring  by  the 
year.  But  in  such  case  the  statute  will  ordinarily  have  a  claim 
for  all  outside  of  the  prescriptive  time,  immediately  before  the 
commencement  of  the  action,  unless  there  is  evidence  to  take  it 
out  of  the  operation  of  the  statute. 

4.  The  rule  of  hiring  without  express  contract  where  the  ser- 
vice is  continued  for  a  long  time,  the  hiring  will  be  understood 
to  be  by  the  year,  unless  circumstances  and  the  dealing  of  the 
parties  indicate  a  less  period  of  time.*  In  case  of  a  physician 
who  causes  injury  by  his  unskillful  work,  the  statute  begins  to 
run  from  the  time  his  professional  relation  has  ceased  with  his 
patient,  as  to  bringing  suit  by  the  patient  to  collect  damages.' 

§  629.  Continuing  to  run.  —  The  English  statute  provides 
that  if  the  plaintiff,  at  the  time  the  action  accrues,  be  an  in- 
fant, feme  covert,  non  compos  mentis,  imprisoned,  or  beyond 
the  seas,  he  may  bring  his  action  at  any  time  within  the  prer 
scribed  period  of  limitation  after  the  disability  ceases.  If 
several  disabilities  co-exist  when  the  right  of  action  accrues, 
the  statute  does  not  begin  to  run  until  all  are  removed.     But 

7.  Ennis  v.  Palace  Car  Co.,  165  9.  Gillette  v.  Tucker,  67  Ohio, 
111.  164,  46  N.  E.  439.  106,  64    N.    E.    865,    93    iVm.    St. 

8.  Ennis  v.   Palace  Car  Co.,   165        Kep.  639  and  note. 
111.  164,  46  N.  E.  439. 

693 


§  629  TERMINATION  OF  CONTBACTS.  Ch.  21 

if  only  one  exists  where  the  cause  of  action  accrues,  other  disa- 
bilities arising  afterwards  cannot  he  tacked  to  the  first,  so  as 
to  extend  the  time  of  limitation.  The  phrase  in  the  English 
statute  "  beyond  the  seas,"  or  similar  phrases,  are  nsed  in  some 
of  the  American  statutes.  Their  interpretation  has  not  been 
the  same.  Some  courts  construe  the  phrase  to  mean  beyond 
the  limits  of  the  United  States,  while  others  hold  that  the 
phrase  means  beyond  the  State  or  jurisdiction  where  the  action 
is  tried. 

Where  a  statute  of  limitations  begins  to  run  it  will  continue 
to  run  until  it  produces  a  complete  bar,  unless  there  is  some 
saving  or  qualification  in  the  statute  itself.^ 

A  statute  of  limitation  does  not  run  where  there  is  no  one 
who  has  the  right  and  the  capacity  to  sue,  and  where  there  is 
no  one  capable  of  being  sued.  But  when  the  statute  once  has 
commenced  to  run,  it  does  not  cease  to  run  on  account  of  any 
intervening  disability  to  sue  and  to  be  sued.^ 

The  statute  of  limitations  effects  the  remedy  only;  it  does 
not  discharge  the  debt,  but  simply  bars  an  action  upon  it  after 
the  statute  has  run.  Though  the  remedy  by  action  is  gone,  a 
lien  or  security  for  the  debt  is  not  lost  by  the  running  of  the 
statute.  So  if  a  note  should  be  given,  which  is  barred  in  ten 
years  after  due,  it  will  not  prevent  the  foreclosure  of  a  mortgage 
to  secure  it  on  real  estate,  which  runs  twenty  years.  The  bar- 
ring of  the  debt  does  not  effect  the  lien  unless  so  provided  by 
statute.  The  security  and  the  debt  are  separate  as  to  the 
statute.^ 

When  the  statute  of  limitations  has  begun  to  run,  it  con- 
tinues to  run,  notwithstanding  the   subsequent  occurrence  of 

1.  Peoria   County  v.   Gordon,   82  468;    Granger  v.   Granger,   6   Ohio, 

111.   435  J    People  v.   White,    11    111.  17;  Milne's  Appeal,  99  Pa.  St.  483; 

342;   Rhodes  v.  Smithurst,  4  Mees.  Kistler  v.  Hereth,  75  Ind.   177,  39 

&  Wei.   42;    Cotterell  v.  Dutton,  4  Am.  Rep.  131  and  note;   Henton  v. 

Taunt.    826;    Peck    v.    Randall.    1  Nichols,  55  Tex.  217. 

Johns.  (N.  Y.)   165;  Rogers  v.  Hill-  2.  Underhill  v.  Ins.  Co.,  67  Ala. 

house,    3    Conn.    398;    McAuliff    v.  45. 

Parker,  10  Wash.   141,  38  P.  744;  3.  Pratt    v.    Huggins,    29    Barb. 

Langford  v.  Gentry,  4  Bibb    (Ky.),  (N.  Y.)  277;  Alexander  v.  Whipple, 

6M 


Ch.  21  STATUTE  OF  LIMITATIONS.       §§  629,  630 

some  disability  Avhich  did  not  exist  at  the  commencement  of 
the  action,  and  which,  had  it  then  existed,  would  have  post- 
poned the  running  of  the  statute  until  removal  of  the  disa- 
bility." 

§  630,  Trusts — Unpaid  subscription  to  corporation  stock. — 

The  statute  begins  to  run  from  the  time  that  the  trustee  has 
openly  repudiated  or  disclaimed  the  trust.^  So  delay  on 
the  part  of  the  heir  for  an  unreasonable  period  after  reach- 
ing his  majority,  to  set  aside  a  purchase  of  his  ancestor's 
land  by  the  administrator,  will  bar  relief  where  the  adminis- 
trator during  that  time  was  openly  and  continuously  in  adverse 
possession  within  the  knowledge  of  the  heir.® 

Subscriptions  to  corporate  stock  are  a  fund  in  the  hands  of 
the  stockholders,  charged  with  a  trust  for  the  payment  of  cor- 
porate debts.  This  trust  does  not  depend  on  any  statute,  but 
is  deduced  from  the  general  principles  of  equity,  from  the 
premise  that  the  capital  is  publicly  pledged  to  those  who  deal 
with  the  corporation  for  their  security.  When  the  corporation 
becomes  insolvent,  the  unpaid  subscription  becomes  a  fund  for 
the  payment  of  corporate  debts.  Then  an  interesting  question 
arises  whether  the  statute  of  limitations  begins  to  run  against 
the  liability  of  the  stockholders  to  the  creditors  of  the  corpora- 
tion, on  their  unpaid  subscription  at  the  time  of  the  insolvency 
of  the  corporation,  as  shown  by  its  assignment  for  creditors,  or 
from  its  bankruptcy.  But  this  unpaid  fund  is  not  to  be  put  into 
distribution  until  the  insufficiency  of  the  other  corporate  assets 
is  shown.  The  better  rule  is  that  the  creditor  need  not  wait 
until  full  administration  has  exhausted  the  other  assets.  The 
creditor  should  have  the  right  to  bring  his  action  to  ascertain 

45  N.  H.  502;  Mayor  v.  Colgate,  12  5.  Bland    v.    Fleeman,    58    Ark. 

N.    Y.    140;    Spears   v.    Hartley,    3  90,  23  S.  W.  4;  Merriam  v.  Hassam, 

Esp.    81;     Williams    v.    Jones,    13  14  Allen   (Mass.),  516,  92  Am.  Dec. 

East,   439;    Higgins  v.   Scott,  2   B.  795;    Kane  v.   Bloodgood,   7   Johns. 

&  Ad.  413.  Ch.    (X.  Y.)    90,  11  Am.  Dec.  417; 

4.  Harris  v.  McGoverns,  99  U.  S.  Wood  v.  Carpenter,  101  U.  S.   139. 

161;  People  v.  Gordon,  82  111.  435;  6.  Thomas    v.    Sypert,    ffl     Ark. 

Hunton  v.  Nichols,  55  Tex.  217.  575,  33  S.  W.  1059. 

695 


§§  030,  631       TERMINATION  OF  CONTRACTS.        Ch.  21 

the  liability  of  the  stockholder  while  evidence  on  disputed  facts 
is  obtainable.^  But  other  courts  hold  differently,  and  declare 
that  the  other  assets  must  be  fully  administered  before  suit  can 
be  brought  against  the  stockholder  who  has  not  paid  in  full  for 
his  stock.  Under  this  rule,  the  main  suit  for  the  exhaustion 
of  the  corporate  assets  may  be  so  prolonged  as  to  permit  the 
statute  of  limitations  to  run  successfully  in  favor  of  stockhold- 
ers who  are  debtors  of  insolvent  corporations,  for  unpaid  stock. 
As  a  general  rule  the  statute  does  not  run  as  between  trustee 
and  cestui  que  trust  in  express  trusts,  but  the  rule  is  otherwise 
as  to  constructive  trusts.* 

§  631.  Death  of  ancestor. — Where  a  person  who  could  have 
maintained  an  action  to  recover  an  interest  in  his  lifetime  dies, 
the  running  of  the  statute  of  limitations  is  not  suspended  during 
the  minority  of  one  who  claims  under  the  decedent.^ 

A  provision  of  a  statute  for  deducting  from  the  period  of 
limitations  the  time  of  absence  of  the  debtor  from  the  State, 
ceases  to  apply  upon  his  death  in  another  State.^  And  w^hen 
the  statute  extends  the  time  within  which  a  personal  action  may 
be  brought  in  case  of  the  death  of  the  person  entitled  to  bring, 
OT  liable  to  such  action,  to  a  specified  time  from  the  date  of 
such  death,  the  action  will  become  barred  without  reference 
to  the  appointment  of  an  administrator,  in  the  time  named.^ 

And  the  fact  that  the  right  of  parties  claiming  an  interest 
in  lands  by  right  of  heirship  and  as  remaindermen  was  con- 

7.  Swearington  v.  Dairy  Co.,  198  Am.  St.  Rep.  84;  Thompson  v. 
Pa.  St.  68,  47  A.  941,  53  L.  R.  A.  Smith,  7  Serg.  &  R.  (Pa.)  209,  10 
471.  Am.  Dec.  453;  Piper  v.  Hoards,  107 

8.  Redfoid  v.  Clarke  (Va.),  41  N.  Y.  67,  13  N.  E.  632,  1  Am.  St. 
S.  E.  720.  Rep.  785.     See,  also,  Gates  v.  Buck- 

1.  Grether    v.    Clark,    75    Iowa,  with,    112    Ala.    356,    20    So.    399; 

383,  39  N.  W.  655,  9  Am.  St.  Rep.  McAnliff  v.  Parker,   10  Wash.   141, 

491;    Chauncey   v.    Powell,    103    N.  38  P.  744. 

Car.  159,  9  S.  E.  298;  Frederick  v.  2.  Hibernian    Banking    Asso.    v. 

Williams,    103    N.    Car.    189;    Mc-  Bank,  157  111.  524,  4l  N.  E.  284. 

Laran  v.  Benton,  73  Cal.  329,  2  Am.  3.  Hughston    v.    Nail,    73    Miss. 

St.  Rep.  814,  14  P.  879;   Castro  v.  284,  18  So.  920. 
Geil,   110   Cal.   202,   42   P.   804,   52 

696 


Ch.  21  STATUTE  OF  LIMITATIONS.       §§  631,  632 

■sidered  very  doubtful  for  several  years  after  the  falling  of  the 
life  estate,  and  nntil  their  rights  were  made  clear  by  a  decision 
in  a  suit  between  other  parties,  is  no  ground  for  holding  that 
the  statute  of  limitations  was  in  the  meantime  suspended  as 
against  them.* 

§  632.  Absence  of  debtor  from  the  State. — In  most  of  the 
States  it  is  provided  that  after  a  cause  of  action  has  arisen 
against  a  person  and  he  departs  from  the  State,  the  statute  of 
limitations  is  suspended  while  he  is  absent,  and  does  not  begin 
tto  run  again  until  his  return.  In  such  case  the  party  must 
depart  after  the  cause  of  action  has  accrued  and  be  continuously 
absent  from  the  State,  and  he  must  reside  without  the  State. 
All  these  elements  must  concur  in  order  to  suspend  the  opera- 
tion of  the  statute.  But  a  person  who  has  a  residence  and 
domicile  in  a  state,  and  departs  as  a  traveler  for  business  or 
pleasure  in  another  country,  does  not  by  his  absence  acquire  a 
residence  or  reside  in  that  country.  He  must  while  so  absent 
at  least  take  up  his  temporary  abode  at  some  particular  place 
with  the  intention  of  making  it  his  home  while  so  absent,  and 
actually  reside  there.^ 

Neither  a  residence  or  domicile  is  acquired  by  a  mere  visi- 
tor from  this  country  traveling  from  place  to  place  in  Europe, 
all  the  time  intending  when  the  purpose  of  the  journey  is  satis- 
fied to  return  to  his  home  here.^ 

So  where  a  debtor  removes  from  a  State  before  the  action 
accrues,  periods  which  he  subsequently  spends  in  the  State  as 
a  salesman  traveling  from  place  to  place,  and  remaining  only 
a  few  days  in  each  place,  cannot  be  included  to  complete  the 
period  of  limitations.^ 

4.  Elder   v.    McClaskey,    70    Fed.  Meli,  120  N.  Y.  485,  24  N.  E.  996, 

Rep.  529,  17  C.  C.  A.  251,  37  U.  S.  17  Am.  St.  Hep.  652. 
App.  1,  199.  2.  Hart  v.   Kip,   148   N.   Y.   306, 

1.  Hart  V.  Kip,   148  N.  Y.   306,  42  N.  E.  712. 
42  N.  E.  712;  Dupuy  v.  Wurtz,  53  3.   VVeille   v.   Levy,   74   Miss.   34, 

N.  Y.  556;  People  v.  Piatt,  117  N.  20  So.  3,  60  Am.  St.  Rep.  500.    See, 

Y.  159,  22  N.  E.  937 ;  DeMeli  V.  De-  also,   Lee   v.   McKay,    118   N.   Car. 

518,  24  S.  E.  210. 

697 


§§    632,  633  TEiBMINATION    OF    CONTRACTS,  C!h.    21 

The  debtor's  absence  from  the  State  is  not  to  be  ineliicled 
when  applying  the  statute  of  limitations.*  In  many  States, 
tihongh  not  in  all,  a  statute  barring  a  debt  arising  in  another 
State  when  barred  in  the  latter  State,  does  not  apply  to  a  debt 
accrning  in  a  State  against  a  resident  thereof  who  removes  to 
another  State  after  the  action  accrues.^  Bnt  this  matter  is 
controlled  by  statutory  provisions,  and  it  makes  no  difference 
where  the  cause  of  action  arises.® 

§  633.  Absence  of  creditor  from  the  State. — The  English 
statute  of  limitations  which  saved  to  persons  "  beyond  the  sea," 
when  their  cause  of  action  accrued,  a  limited  time  after  their 
retiurn,  within  which  to  sue,  runs  from  the  time  the  party  re- 
turns, and  his  going  abroad  again  gives  him  no  privilege,  for 
that  is  gone  by  his  having  once  returned  to  the  kingdom,  after 
his  cause  of  action  accrued.^ 

A  disability  is  removed,  within  the  purview  of  the  statute, 
when  it  no  longer  exists ;  that  of  absence  from  the  State  ends 
when  the  personal  presence  of  the  creditor  in  the  State  begins ; 
and  once  ended  by  such  presence,  though  it  be  but  for  a  tempo- 
rary purpose  and  of  short  duration,  the  disability  does  not  re- 
vive by  subsequent  absence  however  permanent  in  its  character, 
or  long  continued,^  even  when  commenced  during  his  infancy.* 

Every  person  who  is  absent  from  the  State  when  his  cause 
of  action  arises,  whether  of  consenting  capacity  or  not,  is  in- 
cluded in  the  saving  clause  of  a  statute,  unless  excepted  from 

4.  Hampton  v.  France,  32  S.  W.  6.  Webster  v.  Davies,  44  Neb. 
950,  33  S.  W.  826,  17  Ky.  L.  K.  301,  62  N.  W.  484.  See,  also, 
980.  Thompson    v.    Read,    41    Iowa,    48; 

5.  Hibernian  Banking  Asso.  v.  Goodnow  v.  Stryker,  62  Iowa,  221, 
Bank,  157  111.  520,  41  N.  E.  918.  14  N.  345,  17  N.  506;  Wright  v. 
See,  also,   Bagwell  v.   McTighe,   85  Johnson,  42  Ind.  20. 

Tenn.   616,  4  S.  W.   46;   Kempe  v.  7.  Sturt  v.  Mellich,   2   Atk.   610. 

Bader,  86  Tenn.   189,  6  S.  W.  126;  8.  Faw   v.    Roberdeau,   3   Cranch 

Chevrier  v.  Robert,  6  Mont.  319,  12  ( U.  S.),  174. 

P.   702;    Lloyd   v.   Perry,   32   Iowa,  9.  Powell    v.    Koehler,    52    Ohio 

144;    Davis    v.    Harper,    48    Iowa,  St.   103,  39  N.  E.   195,  26  L.  R.  A. 

513;     Mechanics     Build.     Asso.     V.  480,  49  Am.  St.  Rep.  705  and  note. 
Whitaere,  92  Ind.  547. 

698 


Ch.    21  STATUTE    OF    LIMITATIONS.  §§    633,  634 

its  action.  Tlic  disability  may  be  an  absence  from  the  State ; 
where  such  is  the  case,  the  only  fact  essential  to  its  removal 
is  the  actual  presence  of  the  person  in  the  State ;  no  distinction 
having  been  made  l)y  the  statute,  either  with  respect  to  the 
disability,  or  its  removal,  on  account  of  the  age,  or  capacity 
of  the  person,  or  other  circumstances.  And  such  disability  as 
absence  from  the  State  ceases  from  the  time  the  actual  presence 
of  the  person  in  the  State  begins,  though  such  presence  be  of 
short  duration  and  while  the  person  is  an  infant.^° 

§  634.  Joint  debtor. — In  some  of  the  States  the  absence  from 
the  State  of  one  of  the  joint  debtors  suspends  the  statute  of 
limitations  as  to  all.^ 

In  England,  if  the  right  of  action  accrues  against  several 
persons  one  of  whom  is  beyond  the  seas,  the  statute  of  limita- 
tions does  not  run  until  his  return,  though  the  others  have 
never  been  absent;^  but  this  matter  is  regulated  by  the  various 
statutes  which  must  be  consulted  as  there  are  decisions  other- 
wise.^ Thus,  in  New  York,  in  case  of  joint  debtors,  the  statute 
runs  against  the  one  who  remains  at  home,  but  not  against  the 
one  who  has  gone  out  of  the  State.* 

The  general  American  doctrine  is  that  a  part  payment  of  a 
matured  debt  by  one  of  several  joint  debtors  is  inoperative  to 
prevent  the  running  of  the  statute  as  to  the  others.^  In  order 
to  prevent  the  running  of  the  statute  in  favor  of  a  joint  debtor, 
he  must  make  payment  in  person,  or  by  an  authorized  agent. 
The  mere  fact  that  he  has  knowledge  of  payment  being  made  by 
his  co-debtors  is  not  sufficient."     Therefore,  a  partial  payment 

10.  Powell  V.  KoeHler,   52   Ohio  4.  Brewster    v.    Bates,    81    Hun, 

St.  103,  39  N.  E.  195,  26.  L.  R.  A.  294,  30  N.  Y.  S.  780,  62  N.  Y.  St. 

480,  49  Am.  St.  Rep.  705  and  note.  744. 

1.  Reybold  v.  Parker,  7  Houst.  5.  Waughop  v.  Bartlett,  165  111. 
(Del.)   526.  124,  46   N.  E.   197;   Willoughby  v. 

2.  Fanning  v.  Anderson,  7  Ad.  Irish,  35  Minn.  63,  37  N.  W.  379, 
&  El.,  N.  S.  811;  Townsend  v.  Mead,  59  Am.  Rep.  297. 

16  C.  B.  123.  6.  McMillen   v.    Rafferty,   89    N. 

3.  Brown  v.  Delafield,  1  Denio  Y.  456;  Littlefield  v.  Littlefield,  91 
(N.  Y.),  445;   Denny  v.   Smith,  18        N.  Y.  203,  43  Am.  Rep.  663. 

N.  Y.  567. 

699 


§§  634,  635       TEHMINATION  OF  CONTRACTS.       C!h.  21 

of  a  promissory  note  matured,  or  a  debt  due  by  the  principal, 
will  not  suspend  the  statute  as  to  the  surety.^  Because  the  par- 
tial payment  voluntarily  made  by  a  debtor  upon  a  debt  is  in  the 
nature  of  an  acknowledgment  or  admission  by  him  of  his  liability 
for  the  whole  demand,  and  from  the  fact  that  he  made  the  pay- 
ment, a  new  promise  on  his  part  to  pay  the  remainder  of  the  debt 
may  be  implied,  and  under  this  legal  inference  such  new  prom- 
ise arises  at  the  time  the  partial  payment  is  made,  but  this  does 
not  renew  the  debt  as  to  his  co-debtors.^  But  other  courts,  fol- 
lowing the  English  rule,  hold  that  part  payment  by  one  of  the 
several  and  joint  debtors,  before  the  statute  attaches,  takes  it 
out  of  the  operation  of  the  statute  as  to  the  other  debtors,  or 
makers. 

The  principle  on  which  part  payment  by  a  joint  debtor  is  al- 
lowed to  affect  the  other  parties,  is  the  community  of  interests 
among  them,  which  creates  the  presumption  that  the  party  pay- 
ing would  not  acknowledge  that  which  is  adverse  to  his  own  in- 
terest, and  therefore  it  will  be  in  the  interest  of  the  others  and 
bind  them.® 

§  635.  Surety's  liability  in  case  of  fraud  by  principal. — The 

fraudulent  concealment  of  principal  does  not  release  surety. 

7.  Mozingo  v.  Ross,  150  Ind.  688,  thai   v.   Hosier,    16   Ohio   St.   566 
50  N.  E.  867,  41  L.  R.  A.  612,  65  Vance   v.    Hair,   25   Ohio    St.    349 
Am.  St.  Rep.  387 ;  Steele  v.  Souder,  Steele     v.     Souder,     20     Kan.     39 
20  Kan.  39;   Waughop  v.  Bartlett,  Davis  v.  Clark,  58  Kan.  454,  49  P, 
165  111.  124,  46  N.  E.  197.  665 ;     Pfenninger    v.    Kokesch,    68 

8.  Van  Keuren  v.  Parmelee,  2  Minn.  81,  70  N.  W.  867;  Wil- 
N.  Y.  523,  51  Am.  Dec.  322  and  loughby  v.  Irish,  35  Minn.  63,  37 
note;    Shoemaker    v.    Benedict,    11  N.  W.  379,  59  Am.  Rep.  297. 

N.  Y.  176,  62  Am.  Dec.  95  and  note;  9.  Block  v.  Dorman,  51  Mo.  31; 

Winchell   v.   Hicks,    18   N.  Y.   558;  Disbrough  v.  Bideman,  20  N.  J.  L. 

McLaren    v.    McMartin,    36    N.    Y.  275 ;  Corliss  v.  Fleming,  20  N.  J.  L. 

88;    Harper    v.    Fairley,    53    N.   Y.  349;   Whitlock  v.  Doolittle,   18  Vt. 

442;   Graham  v.   Selover,  59  Barb.  440,  46  Am.  Dec.  163;  Pike  v.  War- 

(N.  Y.)    313;    Succession   of  Voor-  ren,  15  Mo.  390,  57  Am.  Dec.  207; 

hies,    21    La.    Ann.    659;    Smith    v.  Hunt  v.  Brigham,  2  Pick.    (Mass.) 

Coon,  22  La.  Ann.  445;   Hunter  v.  581,   13  Am.   Dec.   458:    Calwell  v. 

Robertson,  30  Ga.  479;  Bell  V.  Mor-  Signourney,    19   Conn.   37;    Perkins 

rison,  1  Pet.    (U.  S.)    351;  Morien-  v.  Barstow,  6  R.  I.  505. 

700 


Oh.    21  STATUTE    OF    LIMITATIONS.  §    635 

Hence,  if  a  cause  of  action  for  the  breach  of  the  condition  of  a 
bond  is  fraudulently  concealed  by  the  principal,  the  surety  is 
still  held,  and  against  the  latter  the  cause  of  action  must  be 
deemed  to  have  accrued  where  the  fraud  was  first  discovered, 
at  which  time  the  statute  of  limitations  began  to  run.^ 

The  liability  of  a  surety  on  a  claim  w'hich  is  good  as  against 
the  principal,  ceases  as  soon  as  the  claim  is  extinguished  by  the 
principal.  Without  a  principal  there  can  be  no  accessory.  Nor 
can  the  obligation  of  the  surety,  as  such,  exceed  that  of  the  prin- 
cipal.^ So  where  the  fraudulent  concealment  of  the  principal 
prevents  the  statute  of  limitations  from  running  in  his  favor, 
it  also  stops  it  from  running  in  favor  of  his  surety.^ 

The  existence  of  a  principal  debtor  is  a  condition  precedent 
to  the  operation  of  the  contract  of  a  surety.'*  This  is  in  ac- 
cordance with  the  general  law  of  contracts,  which  prevents  a 
contract  from  becoming  operative,  unless  and  until  all  condi- 
tions precedent  are  fulfilled.^ 

Where  the  principal  extinguishes  the  debt  by  payment,  this 
discharges  the  surety.  Ordinarily  the  liability  of  a  surety  is 
measured  by  the  liability  of  the  principal,®  But  where  the 
statute  does  not  intervene,  the  liability  of  the  surety  is  not 
changed  by  the  insolvency  and  discharge  of  the  principal  in 
the  bond  of  attachment.     And  the  surety  is  still  liable,  though 

1.  McMullen  v.  Winfield,  etc.  Conn.  58,  33  A.  585,  50  Am.  St. 
As.so.,  64  Kan.   298,   67   P.   892,   50        Rep.  75. 

L.  R.  A.  924,  91  Am.  St.  Rep.  236;  4.  Hazard    v.     Irwin,     18     Pick. 

Eissing   v.   Andrews,   66    Conn.   58,  (Mass.)     95;     Swift    v.     Beers,    3 

33  A.  585,  50  Am.  St.  Rep.  75.  Denio    (N.   Y.),   70;    Mountstephen 

2.  Ferry  v.  Burchard,  21  Conn.  v.  Lakeman,  L.  R.  7  Q.  B.  202; 
603;  Willey  v.  Paulk,  6  Conn.  74;  Mallet  v.  Bateman,  L.  R.  1  C.  P. 
Candee  v.  Skinner,  40  Conn.  464.  163. 

3.  Bradford  v.  McCormick,  71  5.  Farmers  and  Mechanics'  Bank 
Iowa,  129,  32  N.  W.  93;  Boone  v.  Kingsley,  2  Doug.  (Mich.)  379. 
County  V.  Jones,  54  Iowa,  669,  2  6.  Seaver  v.  Young,  16  Vt.  658; 
N.  987,  7  N.  155;  Charles  v.  Hos-  Boone  County  v.  Jones,  54  Iowa, 
kins,  14  Iowa,  471,  83  Am.  Dec.  709,  2  N.  987,  7  N.  155;  Patter- 
378  and  note;  Eising  v.  Andrews,  66  son's  Appeal,  48  Pa.  St.  345;  Mc- 

Cabe  V.  Raney,  32  Ind.  309. 


701 


§§    635-638  TEEMINATION    OF    CONTRACTS.  Clh.    21 

the  principal  is  discharged  in  bankruptcy.^     Disability  of  prin- 
cipal will  not  discharge  the  surety.^ 

§  636.  Statutory  provisions. — The  general  rule  is  that  no 
contract  or  agreement  can  modify  a  law,  but  exceptions  are, 
that  where  no  principle  of  public  policy  is  violated,  parties  are 
at  liberty  to  forego  the  protection  of  the  law.  Statutory  pro- 
visions, designed  for  the  benefit  of  individuals,  may  be  waived, 
but  where  the  enactment  is  to  secure  general  objects  of  policy 
or  morals,  no  consent  will  render  a  noncompliance  with  the 
statute  effectual.  But  a  statute  limiting  the  time  within  which 
actions  shall  be  brought  is  for  the  benefit  and  repose  of  indi- 
viduals and  not  to  secure  general  objects  of  policy  or  morals.® 

§  637.  Waiving  of  the  statute. — A  statute  of  limitations  is 
for  the  benefit  of  individuals  and  not  to  secure  general  objects 
of  policy  or  morals.  Its  protection,  therefore,  may  be  waived 
in  legal  form  by  those  who  are  entitled  to  it,  and  such  waiver, 
when  acted  upon,  becomes  an  estoppel  to  plead  the  statute.^" 
And  this  agreement  to  waive  the  statute  need  not  be  in  writing." 
Where  such  w^aiver  is  made  it  is  continuous,  unless  by  its  terms 
it  is  limited  to  a  specified  time.^ 

§  638.  What  law  governs. — ^Limitations  of  actions  is  gov- 
erned by  the  lex  fori  and  is  controlled  by  the  legislature  of  the 
State  in  which  the  action  is  brought,  as  construed  by  the  high- 
est court  of  that  State,  even  if  the  legislative  act  or  the  judicial 
construction  differs  from  that  prevailing  in  other  jurisdictions.^ 

7.  Pingrey  on  Suretyship  and  Trust  Co.  v.  Sheldon,  68  Vt.  259, 
Guar.  131,  212,  408.  35  A.  177;  Bridges  v.  Stephens,  132 

8.  Pingrey    on    Suretyship    and        Mo.  524,  34  S.  W.  555. 

Guar.  92,  135,  190,  376,  379.  11.  Brfdges  v.  Stephens,  132  Mo. 

9.  Quick  V.  Corliss,  39  N.  J.  L.        524,  34  S.  W.  555. 

11;  Burton  v.  Stevens,  24  Vt.  131,  12.  StalEe  Trust  Co.  v.  Sleldon,  68 

58  Am.  Dec.  153.  Vt.  259,  35  A.  177. 

10.  Quick  V.  Corliss,  39  N.  J.  L.  1.  McElmoyle  v.  Cohen,  13  Pet. 
11;  Burton  v.  Stevens,  24  Vt.  131,  (U.  S.)  312;  Bauserman  v.  Blunt, 
58  Am.  Dee.  153;  Gay  v.  Hassom,  147  U.  S.  647,  13  S.  Ct.  466;  Met- 
64  Vt.  495,  24  A.  715;  Random  v.  calf  v.  Waterman,  153  U.  S.  611, 
Tobey,  11  How.   (U.  S.)   493;  State  14    S.    Ct.    947;Obear   v.    Bank,    97 

Y02 


Ch.  21 


STATUTE    OF    LIMITATIONS. 


§     638 


So  an  action  brought  by  a  non-resident  against  a  resident  of  a 
State,  is  governed  by  the  statute  of  limitations  of  the  State  where 
the  action  is  brought,^  unless  the  statute  permits  the  law  of  the 
lex  loci  celehrationis  also  to  be  pleaded.^  This  is  a  question 
pertaining  essentially  to  the  remedy,  and  not  to  the  obligation 
of  the  debtor;  for  a  retrospective  statute,  either  adding  to  or 
diminishing  the  period  within  which  an  action  may  be  brought 
upou  a  contract,  does  not  impair  its  obligations,  provided  a 
reasonable  time  is  allowed  the  creditor  within  which  to  sue.* 
Therefore,  the  lex  fori  must  govern  the  period  within  which  the 
action  is  to  be  brought.^  So  the  effect  of  part  payment  as  to 
reviving  the  debt,  or  preventing  the  statute  from  running,  is  a 
matter  to  be  determined  by  the  lex  fori.^  And  the  same  doc- 
trine holds  as  to  the  written  acknowledgment  of  the  debt.'  The 
lex  fori  governs  as  to  the  running  of  the  statute  against  a  for- 
eign judgment.^  If  the  defendant  sets  up  the  lex  fori  which 
prevents  an  action  and  judgment  is  rendered  in  his  favor,  this 
will  prevent  the  creditor  from  suing  him  in  another  State  where 
the  lex  fori  will  permit  an  action.^  But  in  case  of  judg- 
ment for  the  defendant  on  the  plea  that  the  contract  is  not  in 
writing  under  the  statute  of  frauds  by  the  lex  fori,  or  any  other 
defense  not  going  to  the  merits  of  the  case,  it  does  not  preclude 
the  creditor  from  suing  in  another  State.^" 


Ga.  587,  25  S.  E.  335,  33  L.  R.  A. 
384 ;  Balkau  v.  Woodstock  Iron  Co., 
154  U.  S.  177,  14  S.  Ct.1010;  Mar- 
tin V.  Wilson,  120  Fed.  Rep.  202, 
58  C.  C.  A.  181;  Great  Western  Tel. 
Co.  V.  Purdy,  162  U.  S.  329,  16  S. 
Ct.  810;  Bain  v.  Whitehaven,  3  H. 
L.  Cas.  1. 

2.  Fearing  v.  Glenn,  73  Fed.  Rep. 
116,  19  C.  C.  A.  388. 

3.  Hurd's  111.  Stat.  (1903),  ch. 
83,  sec.  20. 

4.  Wheeler  v.  Jackson,  137  U.  S. 
245,  11  S.  Ct.  76;  Ball  v.  Morrison. 
1  Pet.    (U.  S.)    351. 


5.  Minor's  Conf.  L.  p.  522; 
Story's  Conf.  L.  sees.  576,  577. 

6.  Obear  v.  Bank,  97  Ga.  587,  25 
S.  E.  335,  33  L.  R.  A.  384. 

7.  Walsh  V.  Mayer,  111  U.  S. 
31,  4  S.  Ct.  260. 

8.  Ambler  v.  Whipple,  139  111. 
311,  28  N.  E.  841,  32  Am.  St.  Rep. 
202. 

9.  Bank  v.  Donnally,  8  Pet.  (U. 
S.)   361. 

10.  Minor's  Conf.  L.  p.  522, 
note. 


703 


CHAPTER  XXII. 

Performance. 


AETICLE  I. 
Specified  Mode. 

SlcoTiOi^  639.  To  Perform  Work  and  Furnish  Materials. 

640.  Substantial  Performance — Good  I'aith. 

641.  Time  of  Performance. 

§  639.  To  perform  work  and  furnish  materials. — It  is  the 
general  rule  that  where  a  party  has  entered  into  a  contract  to 
perform  work  and  furnish  materials  of  a  specified  character, 
and  the  other  party  agrees  to  pay  for  the  same  upon  the  per- 
formance of  the  contract,  although  the  work  may  be  performed 
and  materials  furnished,  yet,  if  not  done  in  the  manner  stipu- 
lated, the  contract  is  not  performed  and  no  action  will  lie  for 
compensation.^  A  substantial  performance  must  be  shown,  un- 
less it  has  been  waived  or  released.^ 

Where  the  contract  provides  that  the  work  shall  be  to  the  sat- 
isfaction of  the  promisee,  this  means,  according  to  some  authori- 
ties, that  the  articles  must  be  accepted  as  satisfactory  before 
payment  can  be  recovered,  even  though  the  promisee  has  arbi- 
trarily refused  them.^    But  other  authorities  hold  that  the  prom- 

1.  Smith  V.  Brady,  17  N.  Y.  173,  3.  Zaleski  v.  Clark,  44  Conn.  218, 
72  Am.  Dec.  442;  Glacius  v.  Black,  26  Am.  Rep.  446;  Brown  v.  Foster, 
50  N.  Y.  145,  10  Am.  Rep.  449;  113  Mass.  136,  18  Am.  Rep.  463; 
Dauchey  v.  Drake,  85  N.  Y.  407.  Singerly  v.  Thayer,  108  Pa.  St.  291, 

2.  Glacius  v.  Black,  50  N.  Y.  2  A.  230;  Wood  Reaping,  etc.  Co. 
145,  10  Am.  Rep.  449;  Chandler  v.  v.  Smith,  50  Mich.  565,  15  N.  906, 
State,  38  Ark.  197 ;  Loren  v.  Hill-  45  Am.  Rep.  57 ;  Gibson  v.  Cranage, 
house,  40  Ohio  St.  302;  Hovey  v.  39  Mich.  49,  33  Am.  Rep.  351  and 
Pitcher,  13  Mo.  191.  note. 

704 


Ch.    22  PEKFOEMANCE.  §§    639,  640 

isee,  in  refusing,  must  act  honestly  and  not  in  an  arbitrary 
manner.*  Thus,  printing  a  lithographed  cover  design  Avith  the 
addition,  for  advertising  purposes,  of  the  lithographer's  name, 
which  is  made  after  the  approval  of  the  proofs,  is  a  breach  of 
a  contract  to  furnish  finished  work  equal  in  good  effect  to  the 
proofs,  the  approval  resting  with  the  customer.  And  this  is 
so  though  the  addition  does  not  detract  from  the  merit  or  use- 
fulness of  the  cover ;  and  though  it  is  customary  to  make  it 
unless  an  agreement  to  the  contrary  is  subsequently  made.^ 

§  640.  Substantial  performance  in  good  faith.  —  Builders 
must  perform  their  contract  according  to  conditions.  But 
building  contracts  embrace  many  particulars  which  it  is  im- 
practicable sometimes  to  comply  with,  with  entire  exactness; 
hence,  the  rule  has  been  relaxed  that  a  substantial  compliance 
will  be  deemed  sufficient.  If  there  has  been  no  wilful  departure 
from  the  terms  of  the  contract,  or  omission  in  essential  points, 
and  the  contractor  has  honestly  and  faithfully  performed  the 
contract  in  all  its  material  and  substantial  particulars,  he  will 
not  forfeit  his  right  to  remuneration  by  reason  of  technical, 
inadvertent  or  unimportant  omissions  or  defects.^  The  court 
will  enforce  the  rights  of  the  contractor,  but  will  permit  the 
owner  of  the  real  estate  or  other  property  to  recoup,  set-off,  or 
to  file  a  cross  action.^ 

4.  McClune  v.  Briggs,  58  Vt.  82,  N.  J.  L.  343;  Wade  v.  Haycock,  25 
2  A.  583,  56  Am.  Rep.  557 ;  Duplex  Pa.  St.  382 ;  Meincke  v.  Falk,  61 
Safety  Boiler  Co.  v.  Garden,  101  Wis.  623,  21  X.  785,  50  Am.  Rep. 
N.  Y.  387,  4  N.  E.  749,  54  Am.  Rep.  157;  Gleason  v.  Smith,  9  Gush. 
709  and  note;  Baltimore,  etc.  R.  R.  (Mass.)    484,  57  Am.  Dec.  62. 

Co.   V.   Brydon,   65   Md.    198,   3   A.  2.  Williams   v.   Schmidt,   54   111. 

306,  9  A.  126.  205;   Garfield  v.  Huls,  54  111.  427; 

5.  Harris  v.  Sharpies,  202  Pa.  Parker  v.  Piatt,  74  111.  430;  Phil- 
St.  243,  51  A.  965,  57  Am.  Rep.  318,  lip  v.  Gallant,  62  N.  Y.  256;  Hick- 
08  L.  R.  A.  214.  man    v.    Pinkney,    81    N.    Y.    211; 

1.  Smith  V.  Brady,  17  N.  Y.  173,  Hovey  v.  Pitcher,  13  Mo.  191;  Pat- 

72  Am.  Dec.  442;   Sinclair  v.  Tal-  terson  v.  Judd,  27  Mo.  563;  Porter 

madge,    35    Barb.     (N.    Y.)     602;  v.    Woods,   3    Humph.    (Tenn.)    56, 

Glacius  V.  Black,  50  N.  Y.  145,  10  39  Am.  Dec.   153;   Cutler  v.  Close, 

Am.  Rep.  449;  Beach  v.  Mullen,  34  5  Car.  &  P.  337. 

705 


§  640  TERMINATION  OF  CONTRACTS.  Gh.  22 

It  is  now  the  rule  that  where  a  builder  has  in  good  faith  in- 
tended to  comply  with  the  contract,  and  has  substantially  com- 
plied with  it,  although  there  may  be  slight  defects  caused  by 
inadvertence  or  unintentional  omissions,  he  may  recover  the 
contract  price,  less  the  damage  on  account  of  such  defects.^ 

But  the  defects  must  not  run  through  the  whole,  nor  be  so 
essential  as  that  the  objects  of  the  parties,  to  have  a  specified 
amount  of  work  done  in  a  particular  time,  is  not  accomplished.* 
And  the  mere  belief  of  the  contractor  that  he  has  performed, 
when  he  has  not,  will  not  avail  him.^ 

It  is  held  by  one  line  of  cases,  that  where  one  party  enters 
into  a  special  contract  to  perform  work  for  another  and  fur- 
nish materials,  and  the  work  is  done  and  the  materials  are  fur- 
nished, but  not  in  a  manner  stipulated  in  the  contract,  yet,  if 
the  work  and  materials  are  of  any  value  and  benefit  to  the 
other  party,  he  is  answerable  to  the  amount  whereby  he  is 
benefited.® 

However,  some  of  the  decisions  hold  that  there  can  be  no 
recovery  at  all  even  though  the  owner,  where  the  building  is 
on  his  land,  uses  it  and  derives  a  benefit  from  it,  and  though 
the  contractor  acted  in  good  faith,  provided  there  is  not  a  sub- 
stantial compliance  with  the  contract.^ 

3.  Sinclair  v.  Talmadge,  35  Barb.  5.  ISmyth  v.  Ward,  46  Iowa,  339; 

(N.  Y.)    602;   Johnson  v.  De  Pey-  Devine  v.  Edwards,  101  III.  138. 

ster,  50  N.  Y.  666 ;  Glacius  v.  Black,  6.  Hayward  v.  Leonard,  7  Pick. 

50  N.   Y.    145,    10  Am.   Rep.  449;  (Mass.)    181,  19  Am.  Dec.  268  and 

Phillips  V.  Gallant,  62  N.  Y.  264;  note;   Cutler  v.  Close,  5  Car.  &  P. 

Kenworthy   v.    Stevens,    132    Mass.  337;  Norris  v.  School  Dist.,  12  Me. 

123;  Warren  v.  Stoddart,  105  U.  S.  293,   28   Am.   Dec.    182;    Adams   v. 

224;    Houston,    etc,    R.    R.    Co.    v.  Crossly,    48    Ind.    153;    Pinches   v. 

Snelling,   59   Tex.    116;    Dunlap   v.  Church,  55  Conn.   183,  10  A.  264; 

Hand,  26  Miss.  460;  Noble  v.  James,  Oilman  v.  Hall,  11  Vt.  510,  34  Am. 

2  Grant   (Pa.),  278;  Van  Buren  v.  Dec.    700;    Masters    v.    Houck,    39 

Digges,  11  How.  (U.  S.)  461;  State  Mich.  431,  23  Am.  Rep.  409. 

V.  Bain,  36  Ohio  St.  429;  Reed  v.  7.  Elliott  v.  Caldwell,  43  Minn. 

Gallaher,    53    Ga.    456;     Eaton    v.  357,  45  N.  W.  845,  9  L.  R.  A.  52 

Woolly,  28  Wis.  628.  and  note;  Smith  v.  Brady,  17  N.  Y. 

4.  Phillips  V.  Gallant,  62  N.  Y.  173,  72  Am.  Dec.   442;    Woodward 

264;  Woodward  v.  Fuller,  80  N.  Y.  v.  Fuller,  80  N.  Y.  312;  Miller  v. 

312.  Phillips,   31   Pa.   St.   218;    Bozarth 

706 


Ch.  22 


PEEFORMANCE. 


§  641 


§  641.  Time  of  performance. — When  a  contract  is  completed 
with  a  term  omitted  as  to  time  of  performance,  the  legal  effect 
is  an  engagement  on  the  part  of  the  promisor  to  perform  within 
a  reasonable  time.^ 

The  time  when  a  promise  is  to  be  performed  is  always  ma- 
terial and  must  be  stated  according  to  the  truth,  and  proved 
as  stated,  whether  it  be  upon  the  request  of  the  plaintiff,  or 
upon  a  particular  day,  or  in  a  reasonable  time.^ 

When  an  executory  contract  for  the  sale  of  goods  contains 
no  provision  as  to  the  time  when  delivery  is  to  be  made  by  the 
vendor,  its  legal  effect  is  an  arrangement  to  deliver  within  a 
reasonable  time.^  Reasonable  time  is  what  is  meant  when  not 
specified,  and  it  is  to  be  measured  upon  the  facts  and  circum- 
stances of  each  case.* 

The  promise  to  pay  a  sum  on  demand  may  be  enforced  imme^ 
diately.^  And  where  a  day  is  fixed  for  performance,  or  where 
the  performance  is  to  be  within  a  certain  time,  the  contract 
must  be  performed  at  any  time  during  the  day,  or  during  the 
last  of  the  period  designated.^ 


V.  Dudley,  44  N.  J.  L.  304,  43  Am. 
Rep.  373. 

1.  Phillips  V.  Morrison,  3  Bibb 
(Ky.),    105,   6  Am.   Dec.   638;    At- 

wood    V.    Cobb,    16    Pick.     (Mass.) 
227,  26  Am.  Dec.  657  and  note. 

2.  Osborne  v.  Lawrence,  9  Wend. 
(N.  Y.)   135. 

3.  Benj.  on  Sales,  683,  n;  Pope 
V.  Manuf.  Co.,  107  N.  Y.  61;  13  N. 
E.  592. 

4.  Stewart  v.  Marvel,  101  N".  Y. 
357,  4  N.  E.  743;  Ellis  v.  Thomp- 


son, 3  Mees.  &  Wei.  445;  Davis  v. 
Talcott,  14  Barb.  (N.  Y.)  611; 
Railroad  Co.  v.  Smith,  21  Wall. 
(U.  S.)  162;  Palmer  v.  Breen,  34 
Minn,  39.  24  N.  W.  322;  Minneapo- 
lis, etc,  Manuf.  Co.  v.  Manuf.  Co., 
122  U.  S.  300,  7  S.  Ct,  1187, 

5.  Omohundro  v.  Omohundro,  21 
Gratt.  (Va.)  626;  Warren  v. 
Wheeler,  8  Met.   (Mass,)   97. 

6.  Startup  v.  Macdonald,  6  Man. 
&  Gr.  593. 


707 


§  642  TERMINATION  OP  CONTRACTS.  Cll.  22 

ARTICLE  II. 

Decision  of  Arbiter^  Architect  or  Engineer. 

Section  642.  Provision  in  Contract  for  Arbiter  as  to  Performance. 

643.  Arbitration  Clause. 

644.  The  Arbiter's  Decision  Must  be  Pertinent. 

645.  Fraud. 

646.  Dispense  with  the  Production  of  the  Architect's  Certificate. 

647.  Time  of  Performance  of  the  Work. 

648.  Waiver  of  Time  of  Performance. 

649.  One  Party  Acting  Through  a  Partnership. 

650.  Work  Must  be  Performed  in  a  Workmanship  Manner. 

651.  Receiving  Benefits  of  Service. 

652.  Partial   Payment   as   Evidence  of  Acceptance   of  Work. 

653.  Sufficiency  of  Performance. 

654.  Manufacturing  Articles  According  to  Samples — ^Delivery. 

655.  Substantial  Performance. 

656.  Matters  Excusing  Nonperformance. 

657.  Implied    Condition    as   to    Contingent   Impossibility   of   Per- 

formance. 

658.  Implied  Condition  of  Contracts. 

659.  Why  Implied  Condition  Attaches  to  the  Contract. 

660.  Failure  of  Performance  by  Acts  of  the  Promisor. 

661.  Matters  Excusing  Delay. 

662.  What  Constitutes  Breach. 

663.  Owner  of  Building  Promising  to  See  Seller  of  Materials  Paid. 

664.  Acceptance  and  Waiver. 

665.  Risks  During  Performance. 

666.  Part  Performance. 

§  642.  Provision  in  contract  for  arbiter  as  to  performance. — 

In  building  and  construction  contracts,  generally  a  provision 
is  inserted  that  the  report  of  an  engineer,  inspector,  or  abiter 
as  to  the  amount  and  quality  of  the  work  done  or  material  fur- 
nished under  the  contract,  shall  be  conclusive  upon  the  parties 
to  the  agreement ;  such  provision  is  a  legal  and  binding  stipu- 
lation, and  can  only  be  set  aside  for  fraud,  or  for  such  gross 
mistakes  as  imply  bad  faith  or  a  failure  to  exercise  an  honest 
judgment.^ 

1.  Elliott  V.  Railroad  Co.,  74  Lewis  v.  Railroad  Co.,  49  Fed.  Rep. 
Fed.  Rep.  707;  Williams  v.  Railroad  708;  Kihlberg  v.  United  States,  97 
Co.,   112   Mo.   463,   20   S.  W.   631;        U.     S.     393;     Sweeney    v.    United 

708 


Ch.    22  PEEFOEMANOE.  §§    642, 643 

There  is  no  moral  law  and  no  rule  of  public  policy  which 
forbids  parties  to  submit  to  another  for  determination  or  de- 
cision a  question  of  count,  measurement,  or  distance,  although 
these  questions  may  be  capable  of  accurate  ascertainment.^  The 
legal  presumption  is  that  the  measurements,  inspection,  and 
classification  of  the  arbiter  are  accurate  and  just.^ 

So  a  contract  to  make  an  excavation  for  a  building  under  the 
instruction  of  an  architect,  to  be  completed  when  the  architect 
so  declares,  his  decision  that  the  work  is  performed  is  final 
whether  done  in  accordance  with  the  drawings  or  not.*  But  an 
engineer's  final  certificate  based  upon  an  erroneous  construction 
of  the  contract,  is  not  conclusive.^ 

§  643.  Arbitration  clause The  rule  is  well  settled  that 

where  parties  to  a  construction  contract  of  any  kind  agree  to 
submit  difference,  or  questions  of  any  character  arising  in  the 
construction  of  the  work,  to  the  decision  of  an  architect  or  of 
an  engineer,  the  decision  of  such  arbiter  is  final,  and  all  parties 
are  bound  by  it,  unless  it  be  shown  that  the  estimate  or  con- 
clusion is  fraudulent  or  so  excessive  or  so  palpably  unjust  as 
to  imply  bad  faith  or  gross  neglect;^  an  arbiter's  estimates 
may  be  impeached  only  for  fraud  or  gross  mistake  implying 
bad  faith."' 

States,  109  U.  S.  618,  3  S.  Ct.  344;  Railroad    Co.,    62    Mo.    App.    677; 

Martinsburg,    etc.    Railroad    Co.    v.  Kenney  v.   Queen,   26    Can.    S.    Ct. 

March,  114  U.  S.  549,  5  S.  Ct.  1035;  203. 

Chicago,  S.  F.  R.  R.  Co.  v.  Price,  5.  Burke  v.  Mayor,  7  App.  Dir. 

138  U.  S.  185,  11  S.  Ct.  290.  128,    40    N.    Y.    S.    81.      See,    also, 

2.  Kihlberg  v.  United  States,  97  Gondon  v.  Railroad  Co.,  171  Pa.  St. 
U.  S.  398.  492,  33  A.  61. 

3.  Lewis  V.  Railroad  Co.,  49  Fed.  6.  McDonald  v.  Railroad,  93 
Rep.  708;  Bumpass  v.  Webb,  4  Tenn.  281,  24  S.  W.  252;  Railroad 
Port.  (Ala.)  65,  29  Am.  Dec.  274;  Co.  v.  Central  Lumber  Co.,  95  Tenn. 
Pleasants  v.  Ross,  1  Wash.  (Va.)  538,  32  S.  W.  635;  Martinsburg, 
156,  1  Am.  Dec.  449;  Elliott  v.  etc.  Railroad  Co.  v.  March,  114  U. 
Railroad  Co.,  74  Fed.  Rep.  707.  S.  540,  5  S.  Ct.  1035;   Sweeney  v. 

4.  Smith  V.  Trust  Co.,  97  Iowa,  United  States,  109  U.  S.  618,  3  S. 
117,  66  N.  W.  84.     See,  also.  Bank  Ct.  344. 

V.  Webb  (Ky.),  33  S.  W.  Rep.  1109,  7.  Williams  v.  Railroad  Co.,  112 

17   Ky.  L.  Rep.   1184;    Mackler  v.       Mo.  463,  20  S.  W.  631,  34  Am.  St. 

709 


§§  644,  645       TERMINATION  OF  CONTRACTS.        C!h.  22 

§  644.  The  arbiter's  decision  must  be  pertinent. — ^An  engi- 
neer or  other  arbiter  cannot  bind  the  parties  by  doing  or  cer- 
tifying what  was  not  authorized  by  his  appointment.^  The  law 
does  not  require  that  any  particular  language  shall  be  used  by 
the  arbiter  in  his  certificate,  and  if  it  is  in  substantial  compli- 
ance with  the  requirements  of  the  contract  it  is  suflBcient  and 
conclusive,  unless  there  be  fraud  or  mistake.^  The  statement 
by  an  engineer,  that  the  section  of  a  railroad  was  in  suitable 
condition  for  traffic,  is  but  an  expression  of  opinion  and  is 
entitled  to  no  consideration.^" 

§  645.  Fraud. — The  arbiter  must  exercise  an  honest  judg- 
ment and  commit  no  such  mistakes  as,  under  all  the  circum- 
stances, will  imply  bad  faith.^  Where  the  contractor's  certifi- 
cate is  final,  it  is  not  a  sufficient  excuse  for  failure  to  produce 
such  certificate  that  the  contractor  feared  to  apply  for  it  because 
he  believed  the  architect  to  be  fraudulently  prejudiced  against 
him.^  And  the  mere  fact  that  the  architect's  decision  is,  in  the 
opinion  of  others^  erroneous,  does  not  show  that  it  is  void 
because  fraudulent.' 

Rep.  403;   Railroad  Co.  v.  March,  8.  Kansas  City,  etc.  Railroad  Co. 

114  U.  S.  540,  5  S.  Ct.  1035;  Rail-  v.   Perkins,   88   Tex.   66,   29    S.   W. 

road  Co.  v.  Price,  138  U.  S.  185,  11  1048. 

S.  Ct.  290;  Kansas  City,  etc.  Rail-  9.  Railroad  Co.  v.  Henry,  65  Tex. 

road  Co.  v.  Perkins,  88  Tex.  66,  29  691;    O'Neal   v.   King,   3   Jones   L. 

S.     W.     1048;      Sheffield,     etc.     R.  (N.  Car.)   518;  Johnson  v.  Univer- 

R.     Co.     V.     Gordon,     151     U.     S.  sity,  35  111.  518;  Kansas  City,  etc. 

285,       14      S.      Ct.      343;       Canal  Railroad    Co.    v.    Perkins,    88    Tex. 

Trustees    v.    Lynch,    5    Gil.     (111.)  66,  29  S.  W.  1048. 

521 ;  McAuley  v.  Carter,  22  111.  53;  10.  Kansas  City,  etc.  Railroad  Co. 

Michaelis  v.  Wolf,   136  111.  68,  26  v.   Perkins,   88   Tex.   66,   29   S.  W. 

N.    E.    384;    Arnold   v.    Bournique,  1048. 

144  111.  132,  33  N.  E.  530,  20  L.  R.  1.  Martinsburg,  etc.  Railroad  Co. 

A.  493,  36  Am.  St.  Rep.  419;  Gil-  v.  Marsh,  114  U.  S.  549,  5  S.  Ct. 

more  v.  Courtney,   158  111.  432,  41  1035;    Elliott   v.    Railroad    Co.,    74 

N.  E.   1023;   Thomas  v.  Fleury,  26  Fed.  Rep.  707;   Kihlberg  v.  United 

N.  Y.  26 ;  Noland  v.  Whitney,  88  N.  States,  97  U.  S.  398. 

Y.  648;   Weeks  v.  O'Brien,  141  N.  2.  Gilmore  v.  Courtney,  158  111. 

Y.    199,    36    N.    E.    185;    Chism   v.  432,  41  N.  E.  1023. 

Schipper,  51  N.  J.  L.  1,  16  A.  316,  3.     Gilmore  v.  Courtney,  158  111. 

14  Am.  St.  Rep.  668.  432,  41  N.  E.  1023. 

710 


Ch.  22 


PEKFOBMANCE. 


§§  645,646 


In  general,  the  decision  of  the  arbiter  can  only  be  set  aside 
for  fraud  or  for  such  gross  mistake  as  imply  bad  faith  or  a 
failure  to  exercise  an  honest  judgment*  If  the  decision  is 
fraudulent,  or  so  excessive  or  unjust  as  to  imply  bad  faith  or 
gross  neglect,  it  will  be  set  aside.^ 


§  646.  Dispense  with  the  production  of  the  architect's  cer- 
tificate.— In  many  cases  the  contract  provides  that  the  architect 
shall  give  his  certificate  to  the  contractor  on  the  completion  of 
the  building,  which  is  a  condition  precedent  to  the  recovery  of 
the  contract  price  from  the  owner  of  the  building.  But  the 
fraudulent  failure  of  the  architect  will  release  the  contractor 
from  its  production,  and  he  can  collect  without  it.^ 

Fraud  in  the  decision  of  the  architect  or  superintendent  will 
excuse  the  failure  to  obtain  his  decision  where  it  is  a  condition 
precedent ;  this,  too,  without  regard  to  whether  the  architect  or 
superintendent  is  the  agent  of  the  owner  of  the  building  or  not, 
because  of  the  architect's  fraudulent  decision,  and  his  fraud  re*- 
lieves  the  contractor  from  the  performance  of  a  condition  prece- 


4.  Elliott  V.  Railroad  Co.,  74 
Fed.  Rep.  707;  Williams  v.  Rail- 
road Co.,  112  Mo.  463,  20  S.  W.  631, 
34  Am.  St.  Rep.  403;  Kihlberg  v. 
United  States,  97  U.  S.  398. 

5.  Railroad  Co.  v.  Central  Lum- 
ber Co.,  95  Tenn.  538,  32  S.  W.  635 ; 
McDonald  v.  Railroad  Co.,  93  Tenn. 
281,  24  S.  W.  252;  Sweeney  v. 
United  States,  109  U.  S.  618,  3  S. 
Ct.  ?^A4;  Railroad  Co.  v.  March,  114 
U.  S.  549,  5  S.  Ct.  1035;  Railroad 
Co.  V.  Price,  138  U.  S.  185,  11  S. 
Ct.  290;  Lewis  v.  Railroad  Co.,  49 
Fed.  Rep.  708;  Kennedy  v.  Poor, 
151  Pa.  St.  472,  25  A.  119;  Balti- 
more, etc.  R.  R.  Co.  V.  Brydon,  65 
Md.  198,  3  A.  306,  9  A.  126.  57  Am. 
Rep.  318;  Whelen  v.  Boyd,  114  Pa. 
St.  228,  6  A.  384.  See,  also,  Vaught 
V.  Williams,  120  N.  Y.  253,  24  N".  E. 


195,  8  L.  R.  A.  591,  17  Am.  St.  Rep. 
634;  Lull  v.  Korf,  84  111.  225. 

1.  Bradner  v.  Roflfsell,  57  N.  J. 
L.  32,  29  A.  317;  Murdock  v.  Jones 
(N.  Y.),  3  App.  Div.  221,  38  N.  Y. 
S.  461;  Chism  v.  Schipper,  51  N.  J. 
L.  1,  16  A.  316,  14  Am.  St.  Rep. 
668;  Baltimore,  etc.  R.  R.  Co.  v. 
Polly.  14  Gratt.  (Va.)  447;  Lynn 
V,  Railroad  Co.,  60  Md.  404,  45 
Am.  Rep.  741 ;  Herrick  v.  Belknap, 
27  Vt.  673;  Snell  v.  Brown,  71  111. 
133;  Wyckoff  v.  Meyers,  44  N.  Y. 
143;  Thomas  v.  Fleury,  26  N.  Y. 
26;  Bowery  Nat.  Bank  v.  Mayor, 
63  N.  Y.  336;  Batchelor  v.  Kirk- 
bride,  27  Fed.  Rep.  899 :  Batterbury 
V.  Vyse,  2  Hurlst.  &  C.  41;  Pawley 
V.  Turnbull,  7  Jurist,  N.  S.  792; 
Compare  Clark  v.  Watson,  18  C. 
B.,  N.  S.  278;  Milne  v.  Field,  5 
Exch.  829. 


711 


§§  646-648        TERMINATION  OF  CONTRACTS.        Clh.  22 

dent,  requiring  his  decision  or  certificate.  So  fraud  on  the  part 
of  an  engineer  who  was  to  certify  to  the  performance  of  a  con- 
tract, as  a  condition  precedent  to  a  recovery,  will  allow  the  con- 
tractor to  recover,  upon  proof  of  the  quantity  and  value  of  the 
work  done.^ 

§  647.  Time  of  performance  of  the  work. — ^Where  the  par- 
ties make  time  the  essence  of  the  contract,  it  must  be  performed 
within  the  period  limited.^  Time  not  being  the  essence  of  the 
contract  for  payment  for  the  performance  of  specific  work,  the 
party  entitled  to  the  services  does  not  forfeit  them  absolutely 
by  failing  to  require  performance  within  the  time  named  in  the 
contract.^  In  the  absence  of  the  term  of  a  building  contract, 
the  contract  price  is  presumed  to  be  payable  only  on  completion 
of  the  work.^ 

§  648.  V/aiver  of  time  of  performance. — It  is  the  settled 
doctrine  of  the  English  courts  that  a  contract  within  the 
statute  of  frauds  cannot  be  changed  as  to  the  mode  or  time  of 
performance  by  an  oral  executed  contract.^ 

In  the  United  States  the  general  rule  is  that  a  party  to  a 
written  contract,  sealed  or  unsealed,  within  or  without  the  stat- 
ute of  frauds,  who  is  entitled  to  demand  performance  by  the 
other  party  of  act  within  a  specified  time,  and  who  has  con- 
sented orally  to  the  postponement  of  the  performance  to  a  time 
subsequent  to  that  fixed  by  the  contract,  where  the  other  party 
has  acted  upon  such  consent  and  in  reliance  thereon  has  per- 
mitted the  contract  time  to  pass  without  performance,  is 
estopped  from  subsequently  recalling  consent,  and  waives  his 

2.  Lynn  v.  Railroad  Co.,  60  Md.  5.  Smith  v.  Sheltering  Arms,  89 
404,  45  Am.  Rep.  741;  Baltimore,  Hun,  70,  35  N.  Y.  S.  62,  69  N.  Y. 
etc.  R.   R.   Co.   V.   Polly,   14   Gratt.        St.  273. 

(Va.)    447.  1.  Stead  v.  Dawbar,  10  Ad.  &  El. 

3.  Moot  V.  Association,  90  Hun  57;  Hickman  v.  Haynes,  L.  R.  10 
(N.  Y.),  155,  35  N.  Y.  S.  737,  70  C.  P.  598.  Compare  Cuff  v.  Penn, 
N.  Y.  St.  533.  1  Maule  &  S.  21. 

4.  Kanapolis    Land    Co.    v.    Mor- 
gan, 1  Kan.  App.  65,  41  P.  206. 

Y12 


Ch.    22  PERFORMANCE.  §§    648,  649 

right  to  treat  the  nonperformance  within  the  original  time  as  a 
breach  of  the  contract.^ 

The  original  contract  is  not  changed  by  such  a  waiver,  but 
it  stands  as  an  answer  to  the  other  party  who  seeks  to  recover 
damages  for  nonperformance  by  an  iinrecalled  consent.  The 
party  may,  in  the  absence  of  a  valid  and  binding  agreement  to 
extend  the  time,  revoke  his  consent  so  far  as  it  has  not  been  acted 
upon,  but  it  would  be  inequitable  to  hold  that  a  default,  justi- 
fied by  the  consent,  happening  during  its  existence,  should  fur- 
nish a  ground  of  action.  It  should  make  no  difference  what 
the  character  of  the  original  may  be,  whether  one  within  or 
wuthout  the  statute  of  frauds,  sealed  or  unsealed,  where  one 
party  to  a  contract,  before  the  time  for  performance  by  the 
other  party  has  arrived,  consents,  upon  his  request,  to  extend 
the  time  of  performance,  he  must  be  presumed  to  know  that  the 
other  party  relies  upon  the  consent,  and  until  his  given  notice 
of  withdrawal  he  has  no  just  right  to  consider  the  latter  in 
default,  although  meanwhile  the  contract  time  has  elapsed. 
The  principle  of  equitable  estoppel  applies.^ 

§  649.  One  party  acting  through  a  partnership.  —  Where 
one  party  agrees  to  furnish  another  with  certain  articles,  and 
while  the  contract  is  in  force,  the  former  forms  a  partnership 
with  a  third  party  Avithout  the  consent  of  the  other  party, 
articles  subsequently  furnished  by  the  partnership,  as  between 
the  parties,  must  be  regarded  as  furnished  by  the  original  party, 
acting  through  the  partnership  in  pursuance  of  the  contract. 
This  is  not  a  case  w^here  a  stranger  to  a  contract  voluntarily 
undertakes  to  perform  it.  After  the  formation  of  the  partner- 
ship the  articles  w^ere  furnished,  in  legal  contemplation,  by  the 
original  party,  acting  through  the  partnership  of  which  he  wa3 
a  member.^ 

2.  Thomson  v.  Poor,  147  N.  Y.  McLaine.  10  Bing.  482;  Leather 
402,  42  N.  E.   13.  Co.  v.  Hieronimous,  L.  R.  10  Q.  B. 

3.  Thomson   v.   Poor,    147    N.   Y.        140. 

402,    42    N.    E.    13;    Longfellow   v.  1.  Meyer  v.  Estes,  164  Mass.  457, 

Moore,   102  111.  289;   Pierrepont  v.        41  N.  E.  683,  32  L.  R.  A.  283. 
Barnard,   6  N.  Y.  279;   Hoadley  v. 

713 


§§  650,  651       TEEMINATION  OF  CONTKACTS.        dl.  22 

§  650.  Work  must  be  performed  in  a  workmanlike  manner. 

— The  law  implies  an  undertaking  on  the  part  of  the  party 
performing  the  work  that  he  performs  it  in  a  reasonably  work- 
manlike manner,  having  regard  to  the  general  nature  and  kind 
of  work  and  the  purpose  for  which  it  was  manifestly  designed.^ 
And  the  defendant,  in  the  same  action,  is  entitled  to  have 
deducted  from  the  contract  price,  by  way  of  recoupment,  all 
damages  arising  from  a  disregard  of  the  obligations  imposed 
by  law  in  the  performance  of  the  contract;  as  well  as  those 
occasioned  by  a  violation  on  the  part  of  the  plaintiff  of  the 
express  terms  of  the  contract.^ 

The  right  to  recoupment  is  extensive  with  the  duties  and  obli- 
gations of  the  parties  respectively,  both  to  do  and  forbear.  It 
extends  to  damages  resulting  from  negligence  where  care,  activ- 
ity and  diligence  are  required,  and  from  ignorance  where 
knowledge  and  skill  are  required.^ 

§  651.  Receiving  benefits  of  services. — If  the  party  doing 
the  work  'has  done  so  in  good  faith,  although  the  services  have 
not  been  rendered  according  to  the  obligations  imposed  by  the 
terms  of  the  agreement  and  created  by  the  law,  he  may  recover 
for  his  services  the  contract  price  after  deducting  so  much  as 
they  are  worth  less  an  account  of  such  imperfect  performance 
of  the  contract,  where  the  other  party  has  received  the  benefits 
of  the  services  performed  under  the  agreement.*  In  other 
words,  the  party  performing  is  entitled  to  recover  the  fair  value 
of  his  services,  having  regard  to  and  not  exceeding  the  contract 
price  after  deducting  the  damages  sustained  by  the  defendant 
on  account  of  the  breach  of  the  stipulation  in  the  contract.^ 

1.  Thomas  Fruit  Co.  v.  Start,  989;  Gleason  v.  Smith,  9  Cush. 
107  Cal.  206,  40  P.  336;  Hattin  v.  (Mass.)  484,  57  Am.  Dec.  62;  Moul- 
Chase,  88  Me.  237,  33  A.  989.  ton    v.    McOwen,    103    Mass.    587; 

2.  Hattin  v.  Chase,  88  Me.  237,  Morgan  v.  Hefler,  68  Me.  131; 
33  A.  989.  Beach  v.  Mullin,  34  N.  J.  L.  343 .: 

3.  Austin  V.  Foster,  9  Pick.  Wade  v.  Haycock,  25  Pa.  St.  382; 
(Mass.)    341;    Cota  v.   Mishow,   62        Parker  v.  Piatt,  74  111.  430;   War- 

Me.  124.  ren    v.    Stoddart,    105    U.    S.    224; 

4.  White   V.    Oliver,   36   Me.    92;        Dunlap  v.  Hand,  26  Miss.  460. 
Hattin  v.  Chase,  88  Me.  237,  33  A.  5.  Blood     v.  Wilson,   141     Mass. 

714 


Ch.  22  PERPORMANCB.  §§  652-654 

§  652.  Partial  payment  as  evidence  of  acceptance  of  work. 

— A  partial  payment  made  ^vith  full  knowledge  of  the  condition 
of  the  work,  and  without  objection  to  it,  is  competent  evidence 
with  all  the  other  facts  and  circumstances,  as  having  some  ten- 
dency to  show  waiver  of  defects  in  the  work  and  acceptance ; 
but  it  is  not  conclusive.  Hence,  it  is  erronenous  to  instruct  a 
jury  that  a  partial  payment  is  ipso  facto,  such  an  acceptance 
and  waiver  as  will  preclude  the  defendant  from  claiming  dam- 
ages by  way  of  recoupment  for  violation  of  the  contract  on  the 
part  of  the  plaintiff  in  construction  of  the  work.® 

§  653.  Sufficiency  of  performance. — If  there  be  no  wilful 
departure  from  the  contract,  or  omissions  in  essential  parts,  and 
the  laborer  has  honestly  and  faithfully  performed  the  contract 
in  all  its  material  and  substantial  features,  this  is  a  sufficient 
performance,  as  a  mere  technical,  inadvertent  and  unimportant 
omission  or  defects  will  not  be  considered  a  breach  of  the  con- 
tract.^ But  the  work  must  not  be  defective  in  essential  parts,  and 
the  contract  substantially  fulfilled.  Thus,  where  a  party  agrees 
in  writing  to  pay  for  materials  which  another  should  use  in 
finishing  a  job,  before  a  recovery  can  be  had,  it  must  be  shown 
that  the  materials  Avere  furnished  and  nsed  in  finishing  the 
work.^  And  completion  of  work  to  the  satisfaction  of  a  party 
as  mentioned  in  a  contract,  means,  in  many  States,  completion 
of  work  in  accordance  with  the  contract  in  such  manner  that 
the  party  ought  to  be  satisfied.^ 

§  654.  Manufacturing  articles  according  to  sample — Deliv- 
ery.— When   articles   are  manufactured   according  to   sample, 

25,  6  N.  E.  362;  Powell  v.  Howard,  1.  Sinclair  v.  Talmadge,  35  Barb. 

109  Mass.  192.  (N.  Y.)    602;   Hattin  v.  Chase,  88 

6.  Button    V.    Russell,    55    Mich.  Me.    237,    33    A.    989.      See,    also, 

478,    21    N.    W.    899;    Flannery   v.  Grannis  v.   Quintain,  69  Fed.  Rep. 

Rohrmayer,  46  Conn.  558;  Davis  v.  206;     Gubbins    v.    Lautenschlager, 

School  Dist.,  24  Me.  349;  Andrews  74  Fed.  Rep.  160. 

V.  Portland,  35  Me.  475;   White  v.  2.  Heath    v.     Flannery,     58     HI. 

Oliver,  36  Me.  92;  Hattin  v.  Chase,  App.  300. 

88  Me.  237,  33  A.  989 ;  Moulton  v.  3.  Keeler  v.  CliflFord,  62  111.  App. 

McOwen,  103  Mass.  587.  64. 

Y15 


§§  654,  655       TEEMINATION  OF  CONTRACTS.        CL.  22 

and  the  contract  specifies  no  place  of  delivery,  the  articles  will 
be  delivered  at  the  manufacturer's  place  of  business  or  factory. 
The  manufacturer,  on  completion  of  the  goods,  must  notify 
the  other  party  and  give  him  an  opportunity  to  inspect  the 
articles  at  the  place  they  were  manufactured  to  determine 
whether  they  correspond  with  the  provisions  of  the  contract. 
If  they  do  the  purchaser  must  take  them  and  pay  for  them.^ 
A  notice  that  the  articles  were  manufactured  and  a  demand  of 
payment  was  an  offer  to  deliver  upon  payment  and  was  suffi- 
cient. After  doing  this  the  manufacturer  had  done  all  that 
could  properly  be  required  to  impose  upon  the  defendant  the 
duty  of  taking  and  paying  for  the  articles.^ 

§  655.  'Substantial  performance. — A  party,  in  order  to  re- 
cover on  an  alleged  performance  by  him  of  all  the  terms  of  a 
contract  must  show  a  substantial  compliance  with  each  require- 
ment thereof,  where  there  has  been  neither  a  waiver  nor  accept- 
ance of  benefits  thereunder  by  the  other  contracting  party  ,^ 
unless  he  can  allege  and  prove  a  legal  excuse  of  being  prevented 
by  the  employer,  the  act  of  God,  or  the  law,  but  not  otherwise.^ 
If  he  cannot  do  this,  and  the  defendant  has  not  accepted  the 
work  nor  the  benefits,  he  cannot  recover  as  there  is  not  a  sub- 
stantial performance  of  the  contract.^ 

Where  there  is  a  substantial,  though  not  a  technical  perform- 
ance, and  the  party  has  received  and  retained  the  benefits  of 
such  performance,  the  defendant  cannot  insist  on  such  tech- 
nical failure  of  performance  as  a  defense,  but  will  be  limited 

4.  Bliss  Co.  V.  Gas  Light  Co.,  3.  Smith  v.  Sheltering  Arms,  89 
149  N.  Y.  300,  43  N.  E.  859.  Hun,  70,  35  N.  Y.  S.  62;  Cahill  v. 

5.  Canda  v.  Wick,  100  N.  Y.  127,  Heuser,  2  App.  Div.  292,  37  N.  Y. 
2  N.  E.  381.  S.  736,  73  N.  Y.  St.  450;  Taylor  v. 

1.  Omaha  Consolidated  Vinegar  Marcum,  60  Minn.  292,  62  N.  W. 
Co.  V.  Burns,  44  Neb.  21,  62  N.  W.  330;  Chandler  v.  State,  38  Ark. 
301;  Coates  v.  Sangston,  5  Md.  197;  Malbon  v.  Birney,  11  Wis. 
121.  107;  Hovey  v.  Pitcher,  13  Mo.  124; 

2.  Estep  V.  Fenton,  66  111.  467;  Loren  v.  Hillhouse,  40  Ohio  St. 
Taylor  v.  Beck,  13  111.  376;   Smith  302. 

V.  Gugerty,  4  Barb.  (N.  Y.)  614. 

716 


Ch.    22  PERFOKMANCE.  §§    655-657 

to  alleging  and  proving  damages  by  way  of  counterclaim  or 
recoupment  in  the  action  brought  to  recover  payment  for  the 
performance.* 

If  the  owner  acquiesces  in  a  partial  breach,  the  contractor  may 
recover  on  a  quantum  meruit  for  Avhat  he  has  done."  But  the 
mere  fact  that  the  owner  occupies  the  building  after  a  breach 
by  the  contractor,  is  not  a  waiver  of  the  breach.® 

§  656.  Matters  excusing  nonperformance.  —  Matters  may 
occur  which  will  excuse  nonperformance  of  the  contract.  Ira- 
possibility  of  performance  is,  in  general,  no  answer  to  an  action 
for  damages  for  nonperformance,  provided  the  contingency  was 
such  that  the  promisor  should  have  foreseen  and  provided 
against  when  he  made  the  promise,  nor  will  it  permit  a  recovery 
for  part  performance  of  an  entire  contract.  If,  however,  the 
impossibility  arises,  even  indirectly,  from  the  acts  of  the  prom- 
isee, it  is  a  sufficient  excuse  for  nonperformance.'^ 

This  is  upon  the  principle  that  he  who  prevents  a  thing  from 
being  done  may  not  avail  himself  of  the  nonperformance,  which 
he  himself  occasioned.^  One  party  may  so  act  as  to  compel  the 
other  party  from  performing.  Thus,  where  a  party  hires  an- 
other to  take  and  care  for  his  cattle,  and  the  latter  steals  them, 
the  former  is  not  obligated  to  perform  but  may  begin  suit  at 
once  for  the  cattle.^ 

§  657.  Implied  condition  as  to  contingent  impossibility  of 
performance. — It  is  well  settled  that  where  there  is  a  positive 

4.  Leeds  v.  Little,  42  Minn.  414,  well,  43  Minn.  357,  45  N.  W.  845, 
44  N.  W.  309 ;  O'Dea  v.  Winona,  41  9  L.  R.  A.  52  and  note.  Compare 
Minn.  424,  43  N.  W.  97;  Taylor  v.  Presbyterian  Church  v.  Paint  Co., 
Marcum,  60   Minn.   292,   62   N.  W.  66  Md.  598,  8  A.  752. 

330;  Hattin  v.  Chase,  88  Me.  237,  1.  United  States  v.  Peck,  102  U. 

33    A.    989;    Moulton    v.    McOwen,  S.  64;   Gallagher  v.  Nichols,  60  N. 

103    Mass.    587;    Blood   v.   Wilson,  Y.  438;   European,  etc.  Mail  Co.  v. 

141  Mass.  25,  6  N.  E.  362;  Morgan  Packet  Co.,  30  L.  J.,  C.  P.  247. 
V.  Hefler,  68  Me.  131.  2.  West   v.    Blakeway,  2  Man.  & 

5.  Dermott    v.    Jones,    23    How.  Gr.  751. 

(U.  S.)   220.  3.  Cassidy  v.  Cattle  Co.,  58  III. 

6.  Smith  V.  Brady,  17  N.  Y.  173,        App.  39. 
72  Am.  Dec.  442;   Elliott  v.  Cald- 

717 


§§  657,  658       TEKMINATION  OF  CONTRACTS.       C5l.  22 

contract  to  do  a  thing,  not  in  itself  unlawful,  the  contractor  must 
perform  it  or  pay  damages  for  not  doing  it,  although,  in  conse- 
quence of  unforeseen  accidents,  the  performance  of  his  contract 
has  become  unexpectedly  burdensome  or  even  impossible.^ 

But  this  rule  is  only  applicable  when  the  contract  is  positive 
and  absolute,  and  not  subject  to  any  condition,  either  express  or 
implied.  Hence,  where,  from  the  nature  of  the  contract,  it 
appears  that  the  parties  must  from  the  beginning  have  known 
that  it  could  not  be  fulfilled  unless,  when  the  time  for  fulfill- 
ment of  the  contract  arrived,  some  particular  specified  thing 
continued  to  exist,  so  that  when  entering  into  the  contract  they 
must  have  contemplated  such  continued  existence  as  the  foun- 
dation of  what  was  to  be  done,  then  in  the  absence  of  any  ex- 
press or  implied  warranty  that  the  thing  shall  exist,  the  con- 
tract is  not  to  be  construed  as  a  positive  contract,  but  as  subject 
to  an  implied  condition  that  the  parties  shall  be  excused  in 
case,  before  breach,  performance  becomes  impossible  from  the 
perishing  of  the  thing,  without  default  of  the  contractor.^ 

Therefore,  under  the  implied  condition  of  a  contract  for  work, 
the  parties  are  to  be  excused  from  performance  if  a  certain  event 
happens,  and  by  reason  of  the  happening  of  the  event  it  becomes 
impossible  to  fully  perform  the  contract ;  and,  hence,  there  may 
be  a  'pro  rata  recovery  for  part  performance  by  the  one  party, 
at  least  when  what  has  been  done  is  of  benefit  to  the  other.^ 
Thus,  a  sub-contractor  can  recover  pro  rata  for  his  work  done, 
from  the  contractor  to  build  a  railroad,  where  the  sub-contractor 
has  been  stopped  by  reason  of  nonconsent  of  grantor  of  primary 
contract* 

§  658.  Implied  condition  of  contract.  —  Contracts  may  be 
subject  to  conditions  express  or  implied.     Thus,  the  sale  and 

1.  Reichenbach      v.      Sage,      13  2.  Taylor  v.  Caldwell,  32  L.  J., 

Wasli.  364,  43  P.   354,  52  Am.  St.        Q.  B.  164. 

Rep.  51;   Taylor  v.  Caldwell,  32  L.  3.  Dolan  v.   Rodgers,   149   N.   Y. 

J.,  Q.  B.  164;  Dolan  v.  Rodgers,  149        489,  44  N.  E.  167. 
N.  Y.  489,  44  N.  E.  167.  4.  Dolan  v.   Rodgers,   149   N.  Y. 

489,  44  N.  E.  167. 

718 


Ch.    22  PEEFOBMANCE.  §§    658, 659 

delivery  of  specified  articles  of  personal  property,  under  such 
circumstances  that  the  title  did  not  vest  in  the  vendee,  may  be 
avoided  and  the  vendor  need  not  fulfill  the  contract  where  the 
property  is  destroyed  by  accident,  without  the  fault  of  the  ven- 
dor; and  the  latter  is  not  liable  to  the  vendee  in  damages  for 
nondelivery,  because  the  law  implied  a  condition  that  the  prop- 
erty should  continue  to  exist.^ 

So  contracts  for  personal  services  requiring  skill,  Avhich  can 
only  be  performed  by  the  person  named,  are  not  absolute  obli- 
gations, under  all  circumstances,  but  subject  to  the  implied  con- 
dition that  the  person  designatel  shall  be  able  to  perform  at  the 
time  specified.  Because  both  parties  contracted  as  a  matter  of 
law  that  the  party  should  continue  to  be  able  to  perform,  other- 
wise he  would  be  excused.^  And  so  where  a  party  guarantees 
the  payment  of  dividends  by  a  corporation,  he  is  excused  from 
performing  if  the  State  dissolves  the  corporation  before  the  time 
designated  to  pay  dividends  expires,  because,  if  after  a  contract 
is  made,  the  law  interferes  and  makes  a  subsequent  performance 
impossible,  the  party  is  excused  from  performing.^ 

§  659.  When  implied  condition  attaches  to  the  contract. — 
The  continued  existence  of  the  means  of  performance  is  an  im- 
plied condition,  and  the  parties  necessarily  intended  an  excep- 
tion which  operates  to  carry  out  the  intention  of  the  parties 
under  most  circumstances  and  is  just* 

In  England  this  rule  relieves  both  parties  from  any  obligation 
under  an  entire  contract,  with  reference  either  to  future  or  the 
past.     In  the  United  States  the  rule  is  that  there  may  be  a  pro 

1.  Dexter  v.  Norton,  47  N.  Y.  field  v.  Biackett,  56  Me.  121; 
62,  7  Am.  Rep.  415.  Scully   v.   Kirkpatrick,   79   Pa.   St. 

2.  Spalding  V.  Rosa,  71  N.  Y.  40,  324,  21  Am.  Rep.  55;  Shear  v. 
44,  27  Am.  Rep.  7.  Wright,    60    Mich.    159,    26    N.    W. 

3.  Lorillard  v.  Clyde,  142  N.  Y.  871;  Dexter  v.  Norton,  47  N.  Y.  62, 
456,  462,  37  N.  E.  489,  24  L.  R.  A.  7  Am.  Rep.  415;  Dolan  v.  Rodgers, 
113.  149  N.  Y.  489,  44  N.  E.   167;   Ap- 

4.  Walker  v.  Tucker,  70  111.  527 ;  pleby  v.  Myers,  36  L.  J.,  C.  P.  331, 
Thomas  v.  Knowles,  128  Mass.  22;  336;  Robinson  v.  Davison,  40  L.  J. 

719 


§§    659,  6601  TERMINATION    OF    CONTRACTS.  C!h.    22 

rata  recovery  for  part  performance  by  the  one  party,  at  least 
where  what  has  been  done  is  of  benefit  to  the  other.^ 

Under  an  implied  condition  of  a  contract,  that  the  parties  are 
to  be  excused  from  performance  if  a  certain  event  happens,  and 
by  reason  of  the  happening  of  the  event  it  becomes  impossible 
to  that  which  was  contemplated  by  the  contract,  there  is  an  im- 
plied assumpsit  for  what  has  properly  been  done  by  either  of 
them.^ 

§  66o.  Failure  of  performance  by  acts  of  the  promisor. — 

Where  the  owner  of  a  building  has  by  positive  acts  prevented  the 
full  performance  upon  the  part  of  the  contractor,  the  latter  will 
have  a  lien  for  materials  furnished  and  labor  performed,  so  far 
as  he  has  in  good  faith  proceeded  under  the  contract.^  So  de- 
fendant cannot  defeat  recovery  on  the  ground  that  the  contract 
was  entire  and  that  the  plaintiff  did  not  fully  perform  it,  where 
the  plaintiff's  failure  was  caused  by  the  defendant's  failure  to 
carry  out  his  part  of  the  contract.^ 

In  general,  where  a  party's  failure  to  fully  perform  the  con- 
tract is  due  to  the  fault  of  the  other  party,  or  act  of  God,  or  of 
law,  without  fault  of  the  other  party,  he  can  recover  what  hia 
services  are  reasonably  worth,  and  the  defendant  is  not  entitled 
to  damages  for  the  plaintiff's  nonperformance.^ 

Ex.  172;  Howell  v.  Coupland,  L.  R.  460,    43    P.    649;    Howes    v.    Wire 

1  Q.  B.  D.  258;  Makin  v.  Watkin-  Works  Co.,  46  Minn.  47,  48  N.  W. 

son,  L.  R.  6  Eq.  25.  448;    Charnley   v.   Honig,    74    Wis. 

5.  Dolan  v.  Rodgers,  149  N.  Y.  163,  42  N.  W.  220;  Smith  v.  Mor- 
489,  44  N.  E.  167;  Jones  v.  Judd,  ris,  120  Mass.  63;  Merchants',  etc. 
4  N.  Y.  412;  Cleary  v.  Sohier,  120  Bank  v.  Dashiell,  25  Gratt.  (Va.) 
Mass.    210;    Butterfield    v.    Byron,  625. 

153  Mass.  517,  27  N.  E.  667,  12  L.  2.  Bowdish    v.     Briggs,    5    App. 

R.  A.  571  and  note,  25  Am.  St.  Rep.  Div.  592,  39  N.  Y.  S.  371. 

654;  Niblo  v.  Binsse,  1  Keyes   (N.  3.  Theobald  v.  Burleigh,  66  N.  H. 

Y.),  476;  Cook  v.  McCabe,  53  Wis.  574,  23  A.  367;  Melville  v.  DeWolf, 

250,   10  N.  507,  40  Am.  Rep.  765;  4  El.  &  Bl.  844;  Mill  Dam  Foundry 

Schwartz  v.  Saunders,  46  111.  18.  v.    Hovey,    21    Pick.     (Mass.)    417; 

6.  Butterfield  v.  Byron,  153  Mass.  Walker  v.  Fitts,  24  Pick.  (Mass.) 
517,  27  N.  E.  667,  12  L.  R.  A.  571  191;  Jones  v.  Judd,  4  N.  Y.  411; 
and  note,  25  Am.  St.  Rep.  634.  Heine  v.  Meyer,  61  N.  Y.  171;  Har- 

1.  Justice    V.    Elwert,    28    Oreg.       vey  v.  Coffin,  44  N.  H.  563. 

720 


Ch.    22  PERFOKMANCE.  §§    661-663 

§  66i.  Matters  excusing  delay. — Where  the  contract  is  so 
framed  that  it  binds  the  party  contracting  to  do  the  work,  it  im- 
plies a  correlative  obligation  on  the  other  party  to  do  what  is 
necessary  on  his  part  to  enable  the  party  so  contracting  to  fulfill 
his  part  of  the  contract/  So,  if  the  owner  of  the  building  is 
the  cause  of  the  delay  in  completing  the  work,  he  cannot  object.^ 
And  a  written  contract  for  doing  the  work  within  a  specified 
time  may  be  supplemented  by  a  subsequent  oral  agreement  as 
to  the  time  when  the  work  shall  be  finished.^  If  the  contract  is 
absolute,  delay  cannot  be  excused  by  bad  weather.* 

§  662.  What  constitutes  breach. — Trivial  defects  in  a  build- 
ing is  no  defense,  nor  the  refusal  of  the  owner  to  pay  the  con- 
tractor a  disputed  balance.^ 

Where  a  note  is  given  for  work,  a  failure  of  the  consideration 
will  avoid  it.^  But  where  a  sale  of  materials  provides  for  deliv- 
ery in  installments  and  payment  for  each  installment  on  deliv- 
ery, a  refusal  to  deliver  an  installment  until  a  former  install- 
ment has  been  paid  does  not  constitute  a  breach  of  the  contract 
on  the  part  of  the  seller.^ 

§  663,  Owner  of  building  promising  to  see  seller  of  mate- 
rials paid. — Where  the  contractor  has  failed  to  pay  for  mate- 
rials and  the  material-man  refuses  to  deliver  any  more,  a  prom- 
ise by  the  owner  of  the  building  to  see  the  material-man  paid 
if  he  will  deliver  the  materials,  is  a  valid  promise,  if  acted  upon 

1.  Hudson  Canal  Co.  v.  Coal  Co.,  4.  Cochran  v.  Railroad  Co.,  131 
8  Wall.  (U.S.)  288;  Churchward  v.  Mo.  607,  33  S.  W.  177;  Reichen- 
Reg,  L.  R.  1  Q.  B.  195;  Currier  v.  bach  v.  Sage,  13  Wash.  364,  43  P. 
Railroad  Co.,  34  N.  H.  498.  354,  52  Am.  St.  Rep.  51. 

2.  Willis  V.  Webster,  1  App.  Div.  5.  Greenwald  v.  Hahn,  176  Pa. 
301,  37  N.  Y.  S.  354,  72  N.  Y.  St.  St.  37,  34  A.  972. 

743;   Davis  v.  Light  Co.,  57  Minn.  6.  Slater    v.     Foster,     62    Minn. 

402,  59  N.  W.  482,  47  Am.  St.  Rep.  150,  64  N.  W.  160. 

622.  7.  Raabe  v.   Squire,   llSN.Y.  81, 

3.  Manistee   Iron    Works   Co.    v.  42  X.  E.   516.     See,  also.  Bean  v. 
Lumber  Co.,  92  Wis.  21,  65  N.  W.  Bunker,  68  Vt.  72,  33  A.  1068. 
863;    Thomson  v.   Poor,   147   N.  Y. 

402,  42  N.  E.  13. 

721 


§§  663,  664       TERMINATION  OF  CONTRACTS.        Cik.  22 

bj  the  promisee;^  but  the  refusal  of  the  contractor  to  pay  for 
the  materials  is  not  a  breach  of  contract  by  the  material-man. 
The  material-man  having  relied  upon  the  promise  of  the 
owner  of  the  building,  the  latter  was  liable,  as  the  promise  thus 
made  was  original  and  founded  upon  a  new  consideration,  that 
of  the  materials  furnished  after  the  promise.  Because  where 
the  primary  debt  subsists  and  was  antecedently  contracted,  the 
promise  to  pay  it  is  original  when  it  is  founded  on  a  new  con- 
sideration moving  to  the  promisor  and  beneficial  to  him,  and 
such  that  the  promisor  thereby  comes  under  an  independent 
duty  of  payment  irrespective  of  the  liability  of  the  principal 
debtor.' 

§  664.  Acceptance  and  waiver — The  contractor  may  recover 
for  his  work,  though  he  has  not  complied  with  the  contract, 
when  the  owner  of  the  building  has  accepted  the  work  as  com- 
plete or  waived  the  time  for  completion.  But  a  mere  ordering 
of  extra  work  will  not  absolve  the  builder  from  the  consequence 
of  a  delay  in  completing  the  work  in  accordance  with  the  terms 
of  his  contract.^  But  taking  possession  of  a  building  by  the 
owner  and  acceptance  of  the  work  does  not  waive  the  owner's 
right  to  recoup  such  damages  as  he  may  have  sustained  because 
of  the  delay,  if  the  delay  was  not  caused  by  him.^ 

But  one  who  accepts  the  work  as  complete  cannot  complain 
that  the  work  was  not  performed.^ 

A  mere  partial  payment  is  not  of  itself  a  waiver  of  defects  in 
the  work.*    But  when  the  work  is  accepted  with  its  known  de- 

8.  Raabe  v.  Squire,  148  N.  Y.  81,  2.  Snell  v.  Cottingham,  72  111. 
42  N.  E.  516.  IGl;  Padock  v.  Stout,  121  111.  "571, 

9.  White  V.  Rintone,  108  N.  Y.  13  N.  E.  182;  Filt  v.  Smith,  62  111. 
222,  15  N.  E.  318;  Bayles  v.  Wal-  App.  637;  Nibbe  v.  Brauhn,  24  111. 
lace,  56  Hun  (N.  Y.),  428,  10  N.  Y.  268. 

S.  191 ;  Ackley  v.  Parmenter,  98  N.  3.  Elwood,  etc.  Oil  Co.  v.  Baker, 

Y.  425,  50  Am.  Rep.  693;  Prime  v.  13  Ind.  App.   576,  41   N.   E.    1063; 

Koehler,    77    N.    Y.    91;    Wilks    v.  Hutchins    v.    Webster,     165    Mass. 

Rich,   80   N.   Y.   269,   36   Am.   Rep.  439,  43  N.  E.   186. 

615.  4.  Hattin  v.  Chase,  88  Me.  237, 

1.  Harris     v.     Trickett,     57     111.  33  A.  989. 
App.  515. 

722 


Ch.    22  PERFOKMANCE.  §§    664,  665 

fects,  the  acceptor  waives  his  right  to  recover  for  such  deficien- 
cies. Thus,  if  the  trustees  of  a  church  accept  defective  pews 
and  place  them  in  the  church,  knowing  that  they  do  not  conform 
to  the  specifications,  they  are  charged  with  knowledge  of  such 
nonconformity.^ 

A  party  who  accepts  a  reduced  salary  for  a  long  time,  waives 
his  right  to  receive  the  salary  provided  in  the  contract.^  So 
where  a  vendor  accepts  a  draft,  not  according  to  the  agreement, 
and  retains  it  for  a  reasonable  time,  he  waives  his  right  to  de- 
mand a  draft  stipulated  in  the  agreement.^ 

§  665.  Risks  during  performance. —  Where  an  entire  con- 
tract is  entered  into  to  do  work,  and  an  accident  happens  with- 
out the  fault  of  either  party,  the  contractor  must  bear  the  loss.* 
But  if  the  contract  is  not  entire  the  rule  is  different.  Thus, 
where  a  point  is  reached  in  the  performance  of  a  contract  to  put 
work  into  a  building,  at  which  the  party  doing  the  work  is  en- 
titled to  be  paid,  he  can  recover  the  money  thus  earned,  not- 
withstanding the  work  done  and  the  building  into  which  it  was 
put  is  destroyed  by  fire  or  other  accident.^ 

So,  in  case  of  a  partial  performance  of  a  contract  to  lath  and 
plaster  a  building  which  was  destroyed  by  fire  while  the  work 
was  in  progress,  without  the  fault  of  either  party,  the  contractor 
may  recover  the  reasonable  worth  of  the  work  and  material  fur- 
nished, under  the  appropriate  common  count.^"  So,  where  a 
party  has  contracted  to  furnish  the  iron  work  for  a  building 

5.  Harrisburg  Lumber  Co.  v.  30  Ct.  CI.  31;  Leavitt  v.  Dover, 
Washburn,  29  Oreg.  150,  44  P.  390.  67  N.  H.  94,  32  A.  156,  68  Am. 
See,  also,  Stewart  v.  McQuade,  4S  St.  Rep.  640;  Wisconsin  v.  Thomp- 
Pa.  St.  191.  son,  94  Iowa,  607,  63  N.  W.  Rep. 

6.  Brighton  v.  Railroad  Co.,  103  346;  Rothwell  v.  Dean,  60  Mo.  App. 
Mich.  420,  61  N.  W.  550.  428;  Tompkins  v.  Dudley,  25  N.  Y. 

7.  Ryalls    v.    Moody,    102    Ala.    "  272,  82  Am.  Dec.  349. 

519,  15  So.  240.  9.  Siegel   v.   Eaton,   60   III.   App. 

8.  Norton  v.  Fancher,  92  Hun,  639;  Cleary  v.  Sohier,  120  Mass. 
463,  36  N.  Y.  S.  1032,  72  N.  210.  See,  also,  Wilson  v.  Pick- 
Y.  St.  434 ;   Harmony  v.  Bingham,  wick  Co.,  30  111.  App.  333. 

12  N.  Y.  99,  62  Am.  Dec.   142  and  10.    Cleary  v.  Sohier,   120  Mass. 

note;    Satterlee   v.    United    States,       210. 

723 


§§  665,  666       TEKMINATION  OF  CONTEACTS.       dl.  22 

"wliich  was  subsequently  destroyed  by  fire,  after  lie  bas  manu- 
factured the  iron,  be  can  recover;  furnishing  the  iron  was  dis- 
tinct from  that  for  putting  it  in  the  building. ^^ 

§  666.  Part  performance. — Part  performance  does  not  com- 
ply with  the  contract.  So,  where  there  has  not  been  a  substantial 
compliance  on  the  part  of  the  contractor  with  the  building  con- 
tract, nor  an  acceptance  of  the  work  by  the  other  party,  the  con- 
tractor cannot  recover  in  an  action  on  the  specific  contract,  the 
contract  price  less  allowances  for  the  defects.^  A  part  per- 
formance of  an  entire  contract  does  not  comply  with  the  con- 
tract and  the  contractor  cannot  recover  for  part  performance,^ 
unless  he  was  prevented  from  performing  by  the  other  con- 
tracting party,  or  so  trifled  with  that  he  could  legally  declare 
the  contract  at  an  end.^ 

But  if  the  other  party  accepts  the  work  and  the  materials 
received  are  of  any  value  or  benefit  to  the  other  party,  he  is 
answerable  to  the  amount  whereby  he  has  been  benefited.^ 

Where  the  contract  is  entire,  and  there  is  a  failure  on  one 
part  to  perform  the  service  which  is  stipulated  for,  and  no  ex- 
press or  implied  waiver  on  the  other  part  of  the  strict  letter  of 
the  contract,  the  condition  must  be  substantially  performed  be- 
fore a  recovery  can  be  had  on  the  common  counts  for  labor  and 
materials.^ 

When  a  contractor  has  substantially  performed  a  contract, 
but  fails  in  some  minor  particulars,  he  can  recover,  according  to 
one  line  of  cases,  the  contract  price  less  the  difference  between 

11.  Rawson  v.  Clark,  70  111.  656.        449;  Smith  v.  Brady,  17  N".  Y.  173, 

1.  Hulst  V.  Asso.,  9  S.  Dak.  144,       72  Am.  Dec.  442. 

68  N.  W.  200.  4.  Norris  v.  School  Dist.,  12  Me. 

2.  Martin  v.  Schoenberger,  8  293,  28  Am.  Dec.  18^;  Pinches  v. 
Watts.  &  S.  (Pa.),  367;  Gillespie  Church,  55  Conn.  183,  10  A.  264; 
Tool  Co.  V.  Wilson,  123  Pa.  St.  19,  Hayward  v.  Leonard,  7  Pick. 
16  A.  36;  Hartman  v.  Meighan,  (Mass.),  18,  19  Am.  Dec.  268  and 
171  Pa.  St.  46,  33  A.  123.  note;  Hulst  v.  Asso.,  9  S.  Dak.  144, 

3.  Hartman  v.  Meighan,  171  Pa.  68  N.  W.  200;  Adams  v.  Crossly,  48 
St.    46,    33    A.     123;     Dauchey    v.  Ind.  153. 

Drake,    85    N.   Y.    407;    Glacius   v.  5.  Hajrward  v.  Leonard,  7  Pick. 

Black,  50  N.  Y.  145,  10  Am.  Eep.        (Mass.)    181,  19  Am.  Dec.  268  and 

Y24 


Ch.    22  PERFORMANCE.  §§    666,667 

the  value  of  the  hiiildin^  as  completed  and  its  value  as  it  should 
have  been  completed ;  and,  according  to  another  class  of  deci- 
sions, the  contract  price,  less  the  sum  it  would  take  to  complete 
the  building  in  accordance  with  the  contract.®  However,  if  the 
default  is  wilful,  the  contractor  cannot  recover  even  for  a  sub- 
stantial performance.^ 


ARTICLE  III. 

Specific  Performance. 

Section  667.  Specific  Performance — When  Enforced — Contracts  to  Devise. 

668.  Requisites  of  Contract — Building  Contracts. 

669.  Mutuality  in  Obligations  and  Remedy. 

670.  Contracts  as  to  Personal  Property. 

671.  When  there  is  an  Adequate  Remedy  at  Law. 

672.  Change  of  Condition  of  One  of  the  Parties. 

673.  Sale  of  Patent  Rights. 

674.  Sale  of  Personalty. 

675.  Sale  of  Chattels  Having  a  Special  Value. 

676.  Supervision  of  the  Court — Continuous  Acts. 

677.  Contracts   Involving  the   Exercise  of   Skill,   Personal   Labor 

and  Cultivated  Judgment. 

678.  Tender  of  Performance. 

679.  Time  of  Performance. 

680.  Contracts  Subject  to  Conditions. 

681.  Part  Performance. 

§  667.  Specific  performance  —  Contracts  to  devise — When 
enforced. — In  some  cases  damages  for  a  breach  of  the  contract 

note;    Olmstead  v.   Beale,    19  Pick.  peck,     127     Pa.     St.     446,     17     A. 

(Mass.),    528;    Jennings   v.    Camp,  1100;    Woodward  v.   Fuller,   80  N. 

13  Johns.    (N.  Y.),  99,  7  Am.  Dec.  Y.   312;    Leeds  v.   Little,  42  Minn. 

867;   Kittle  v.  Harvey,  21  Vt.  301  414,    44    N.    W.    309;    Gleason    v. 

Wadligh  V.  Sutton,  6  N.  H.  15,  23  Smith,    9    Cush.    (Mass.),   484,    57 

Am.   Dec.    704;    Burn   v.   Miller,    4  Am.  Dec.  62;   Cullen  v.  Sears,  112 

T.  R.  745;   Chapel  v.  Hicks,  2  Cr.  Mass.    299;    Maulton    v.    McOwen, 

&  M.  214.  103   Mass.   587;    Hulst  v.   Associa- 

6.  Stillwell,  etc.  Co.  v.  Phelps,  130  tion,  9  S.  Dak.  144,  68  N.  W.  200. 
U.  S.  520,  9  S.  Ct.  607;  Glacius  v.  7.  Scheible    v.    Klein,    89    Mich. 

Black,  50  N.  Y.  145,  10  Am.  Rep.  376,  50  N.  W.  857;  Gill  v.  Vogler, 

449;    Pepper   v.    Philadelphia,    114  52   Md.   663;    Gillespie  Tool  Co.  v. 

Pa.  St.  96,  6  A.  899;  Sticker  v.  Ove-  Wilson,  123  Pa.  St.  19,  16  A.  56. 

725 


§  667  TERMINATION  OF  CONTEACTS.  Ch.  22 

do  not  furnish  a  jnst  remedy.  The  remedy  of  specific  perform- 
ance of  a  contract  is  purely  equitable,  given  as  a  substitute  for 
the  legal  remedy  of  compensation  whenever  the  legal  remedy  is 
inadequate  or  impracticable.  The  principle  which  is  material 
to  be  considered  is  that  the  court  gives  specific  performance, 
instead  of  damages,  only  when  it  can  by  that  means  do  more 
perfect  and  complete  justice  ;^  it  is  within  the  discretion  of  the 
court  where  it  will  take  jurisdiction.^ 

It  is  necessary,  in  order  to  give  a  court  of  equity  jurisdiction 
that  the  contract  shall  be  complete  and  certain  as  well  as  fair, 
just  and  equal  in  all  its  parts,  and  that  it  be  founded  on  a  valu- 
able consideration.  It  must  be  capable  of  being  specifically 
enforced,  and  be  of  a  nature  that  the  court  can  decree  its  com- 
plete performance  against  both  parties  without  adding  to  its 
terms.  It  must  appear  that  the  plaintiff  had  no  adequate 
remedy  at  law,  and  that  a  refusal  to  perform  the  contract  would 
be  a  fraud  upon  him.^ 

An  injunction  restraining  the  breach  of  a  contract  is  a  nega- 
tive specific  performance  of  that  contract,  and  the  jurisdiction 
of  equity  to  gi'ant  such  injunction  is  substantially  co-incident 
with  its  jurisdiction  to  compel  a  specific  performance.  And 
generally,  courts  of  equity  will  not  restrain  by  injunction  the 
violation  of  contracts  of  a  character  where  they  cannot  decree 
specific  performance  ;*   and  courts  will  not  enforce  specific  per- 

1.  Young  Lock  Nut  Co.  v.  Mfg.  3.  Modisett  v.  Johnson,  2  Black. 

Co.    (N.  J.),  34  At.  Rep.  947;  Ten  (Ind.)    431;   Ikerd  v.   Beavers,   106 

Eyck  V.  Manning,  52  N.  J.  Eq.  47,  Ind.  483,     7     N.     E.     326;     Louis- 

27   A.   900;   Hissam  v.  Parrish,  41  ville,  etc.  R.  R.  Co.  v.  Bodenschatz, 

W.  Va.  686,  24  S.  E.  600,  56  Am.  141   Ind.   251,   39   N.   E.   703;    Sey- 

St.  Rep.   982;   Campbell  v.  Potter,  mour  v.  Delaney,  6  Johns.  Ch.   (N. 

147   111.  576,  35  N.  E.  364;   Town-  Y.)    222;    Carberry  v.   Tannehill,   1 

send    V.    Vanderworker,    20    D.    C.  Har.  &  J.    (Md.)    224;   Marble  Co. 

197;    Gove    v.    Biddleford,    85    Me.  v.   Ripley,   10   Wall.    (U.   S.),  339; 

393,   27    A.    264;    Porter   v.    Water  Atlanta,  etc.  R.  R.  Co.  v.  Speer,  32 

Co.,  84  Me.  195,  24  A.  814;  Ameri-  Ga.  550,  79  Am.  Dec.  305;  Adderly 

can  Box  Machine  Co.  v.  Grossman,  v.  Dixon,  1  Sim.  &  St.  607. 

61  Fed.  Rep.  888,  10  C.  C.  A.  146,  4.  Welty  v.  Jacobs,  171  111.  624, 

21  U.  S.  App.  383.  49  N.  E.  723,  40  L.  R.  A.  98. 

2.  Homan  v.   Stewart,    103   Ala. 
644,  16  So.  35. 

726 


Ch.    22  PEEFORMANCE.  §    667 

formance  of  particular  stipulations  from  the  rest  of  the  contract 
where  they  do  not  stand  clearly  by  themselves,  unaffected  by 
other  provisions.^ 

A  party  may,  for  a  valuable  consideration,  renounce  the  abso- 
lute power  to  dispose  of  his  property  by  will  to  a  particular 
person,  and  such  contract  may  be  enforced  either  by  an  action 
for  its  breach  against  his  personal  representatives,  or,  in  a  proper 
case,  by  a  bill  for  specific  performance  against  his  heirs,  devisees 
or  personal  representatives.^  He  can  make  a  valid  agreement 
binding  himself  to  make  a  particular  disposition  of  his  prop- 
erty by  will,  and  this  contract  may  be  enforced  after  his  death, 
as  though  the  deceased  obligee  were  a  party  to  the  suit.^  The 
principle  on  which  courts  of  equity  undertake  to  enforce  the 
execution  of  such  agreements  is  referable  to  their  jurisdiction 
over  the  subject  of  specific  performance.  The  theory  on  which 
the  courts  proceed,  is  to  construe  such  agreement,  unless  void 
under  the  statute  of  frauds,  or  for  other  reasons,  to  bind  the 
property  of  the  testator  or  intestate  so  far  as  to  fasten  a  trust 
in  favor  of  the  promisee,  and  to  enforce  such  a  trust  against 
the  heirs  and  personal  representatives  of  the  deceased,  or  others 
holding  under  them  charged  with  notice  of  the  trust.*  Such 
contract  must  not  be  unconscionable,  inequitable,  or  unjust,  for 
no  court  of  equity  will  enforce  specific  performance  of  a  con- 
tract of  that  character,  as  its  enforcement  rests  in  the  sound  dis- 
cretion of  the  court.^  But  a  contract  in  relation  to  the  making 
of  a  will,  which  can  have  specific  performance  decreed,  must  be 

5.  Baldwin  v.  Fletcher,  48  Mich.  26;  Taylor  v.  Mitchell,  87  Pa.  St. 
604,  12  N.  873.  518,  30  Am.  Rep.  383;  Fortescue  v. 

6.  Johnson  v.  Hubbell,   10  N.  J.       Hennah,  19  Ves.  67. 

Eq.  332,  66  Am.  Dec.  773  and  note;  8.  Rivers   v.   Rivers,   3   Des.    Eq. 

Wriglit    V.    Tinsley,    30    Mo.     389;  (S.    Car.),    190,    4   Am.    Dec.    609; 

Parsell  v.  Stryker,  41  N.  Y.  480.  Jones  v.  Martin,  3  Anstr.  882;  Pod- 

7.  Manning  v.  Pippen,  80  Ala.  more  v.  Gunning,  7  Sim.  644; 
257;  Maddox  v.  Row,  23  Ga.  431,  Emery  v.  Darling,  50  Ohio  St.  160, 
68  Am.  Dec.  535;  Wallace  v.  Long,  33  N.  E.  715. 

105  Ind.  525,  5  N.  E.  666,  55  Am.  9.  Hamilton  v.   Harvey,   121   HI. 

Rep.  222;    Frisby  v.  Parkhurst,  29  469,   13  N.  E.  210,  2  Am.  St.  Rep. 

Md.  58,  96  Am.  Dec.  503;  Leonard-  118;    Crandall    v.    Wellig,    166    HI. 

son  V.  Hulin,  64  Mich.  1,  31  N.  W.  233,  46  N.  E.  755. 

727 


§§  66T,  668       TEKMINATION  OF  CONTKACTS.       Cih,  22 

absolute  in  its  terms.  So,  if  a  contract  to  devise  is  in  the  alter- 
native, or  its  construction  doubtful,  it  will  not  be  specifically 
enforced.^" 

The  party  seeking  specific  performance  of  the  contract  for 
the  conveyance  of  land  must  perform  his  part  of  it.  If  he  re- 
fuses or  neglects  to  do  so,  he  cannot  compel  specific  perform- 
ance.^^ Thus,  where  husband  and  wife  mutually  agree  as  to  the 
disposition  of  their  property,  and  one  of  them  dies,  third  parties 
in  interest  can  compel  specific  performance  as  to  the  surviving 
spouse.^^  One  party  cannot  annul  such  a  contract  without  the 
consent  of  the  other ;    its  obligations  cannot  be  impaired.^^ 

§  668.  Requisites  of  contract  —  Building  contracts.  —  In 
order  that  a  contract  may  be  specifically  enforced  in  a  court  of 
equity,  the  contract  must  be  upon  a  valuable  consideration,  rea- 
sonably certain  as  to  its  subject-matter,  its  stipulations,  its  pur- 
poses, its  parties,  and  the  circumstances  under  which  it  is  made ; 
it  must  be  mutual  in  its  obligations  and  its  remedy.^  A  party's 
right  to  the  aid  of  the  court  does  not  depend  upon  his  subse- 
quent offer  to  perform  the  contract  on  his  part,  but  upon  its 
original  obligatory  character.^ 

The  remedy  by  specific  performance  is  not  a  matter  of  strict 
right  but  of  sound  judicial  discretion,  and  will  be  granted  or 
denied  as  the  justice  and  right  of  the  particular  case  shall  seem 
to  the  court,  on  full  consideration  of  the  rights  and  equities  of 
the  parties,  to  require.^ 

10.  Barrett  v.  Geisinger,  148  111.  1.  Stokes  v.  Stokes,  148  N.  Y. 
98,  35  N.  E.  354.  708,  43  N.  E.  989;   Louisville,  etc. 

11.  Weingaertner  Probst,  115  111.  K.  E.  Co.  v.  Bodenschatz,  141  Ind. 
412,  5  N.  E.  885;  Cronk  v.  251,  39  N.  E.  703;  Hissam  v.  Par- 
Trumble,  66  111.  428.  rish,  41  W.  Va.  686,  24  S.  E.  600, 

12.  Carmichael     v.     Carmichael,  5U  Am.  St.  Rep.  892. 

72  Mich.  76,  40  N.  W.  173,  1  L.  R.  A.  2.  Bodine  v.  Glading,  21  Pa.  St. 

596,  16  Am.  St.  Rep.  528  and  note.        50,    59    Am.    Dec.    749;    Duvall   v. 

13.  People  V.  Supervisors,  47  111.       Myers,  2  Md.  Ch.  401. 

256;   Myers  v.  Gross,  59  111.  436;  3.  Fry  Spec.  Perf.  286;  Ten  Eyck 

Bird  V.  Pope,  73  Mich.  483,  41  N.  v.  Manning,  52  N.  J.  Eq.  47,  27  A. 
W.  514.  900. 


Y28 


Ch.    22  PERFORMANCE.  §    668 

Specific  performance  of  a  contract  will  not  be  decreed  under 
the  following  conditions: 

1.  As  against  one  party  in  favor  of  another  who  has  disre- 
garded his  own  reciprocal  obligations  in  the  matter/ 

2.  Nor  where  the  duties  to  be  fulfilled  by  the  party  are  con- 
tinuous and  involve  the  exercise  of  skill,  personal  labor,  and 
cultivated  judgment.^ 

3.  Nor  where  there  is  a  want  of  mutuality  in  the  contract.' 

4.  Nor  where  the  party  has  a  complete  remedy  at  law.'' 
Under  the  fourth  head  especially  come  building  contracts. 

Equity  has  no  jurisdiction  to  compel  specific  performance  where 
there  is  an  adequate  remedy  at  law.^  But  it  is  held  that  a  con- 
tract for  repairs  can  be  specifically  enforced.^  But  it  has  been 
held  that  a  lessor,  leasing  a  building  to  be  erected,  must  comply 
with  his  agreement  after  the  building  has  been  erected,  and  fur- 
nish lights  and  other  apparatus,  and  that  specific  performance 
would  be  decreed.^"  This  decision  is  against  the  weight  of 
authority.  But  specific  performance  will  be  decreed  in  cases 
where  the  owner  of  land  agrees  to  build  thereon  in  consideration 
of  certain  benefits  or  privileges.  Thus,  where  A  contracts  to 
build  on  his  own  land,  or  on  land  in  which  he  has  a  possessory 
interest,  with  B,  the  latter  to  be  benefited  materially  by  such 
building,  or  is  to  receive  some  material  benefit  by  such  building, 

4  Electric   Secret  Service  Co.  v.  Flight  v.   Bolland,    4    Russ.    298; 

Manuf.  Co.,  125  Mo.   140,  28  S.  W.  Gapen  v.  Gapen,  41  W.  Va.  422,  23 

486;  Marble  Co.  v.  Ripley,  10  Wall.  S.  E.  579. 

(U.    8.),    339;    Young    Lock    Nut  7.    Holley     v.     Anness,     41     S. 

Co.  V.  Manuf.  Co.    (N.  J.  Ch.),  34  Car.   349,   19   S.   E.   646;    Campbell 

At.  Rep.  947.  v.   Patton,   147   111.   576,   35   N.  E. 

5.  Grape  Creek  Coal  Co.  v.  Spell-  364;  Young  Lock  Nut  Co.  v.  Manuf. 
man,   39   111.   App.   630;    Wilson  v.  Co.    (N.  J.  Eq.),  34  At.  Rep.  947. 
Railway  Co.,  9  Ch.  App.  279;  Port  8.  Errington  v.  Aynesly,  2  Dick. 
Clinton,  etc.  R.  R.  Co.  v.  Railroad  692;  Mastin  v.  Halley,  61  Mo.  196. 
Co.,  13  Ohio,  544.  9.  Paxton  v.   Newton,   2   Sm.   & 

6.  Ten  Eyck  v.  Manning,  52  N.  Gif.  437;  Beck  v.  Allison,  4  Daly 
J.   Eq.   47,   27   A.   SDO;    Hissam   v.  (N.  Y^),  14. 

Parrish,   41   W.  Va.   686,   24   S.   E.  10.  Jones  v.   Parker,   163   Mass. 

600,  56  Am.  St.  Rep.  892;  Lumley  564,  40  N.  E.  1044,  47  Am.  St.  Eep. 
V.  Ravenscroft  (1895),  1  Q.  B.  683;        485. 


729 


§§  668,  669       TEEMINATION  OF  CONTEACTS.        C!ll.  22 

or  is  to  receive  some  privilege  by  reason  of  the  building,  and 
such  benefit  or  privilege  is  part  consideration  of  the  contract, 
specific  performance  will  be  decreed  if  A  refuses  to  carry  out 
the  contract."  But  in  this  class  of  cases,  the  contract  will  not 
be  decreed  specifically  performed,  if  the  terms  are  uncertain, 
indefinite  and  vague.  ^  Neither  will  it  be  decreed  if  it  violates 
the  statute  of  frauds.^^  And  specific  performance  will  be  de- 
creed where  there  are  continuing  duties  to  be  performed.  Thus, 
a  railroad  company  will  be  compelled  to  permit  another  com- 
pany to  its  tracks  as  per  agreement.^* 

Ordinary  contracts  to  perform  labor  or  work  will  not  be 
specifically  enforced,  as  there  is  an  adequate  remedy  at  law, 
for  the  injured  party  may  at  once  hire  other  parties  to  complete 
the  building.  But  where  a  party  is  in  possession  of  land  and 
contracts  with  another  to  build  on  that  land,  a  consideration 
being  given,  and  the  terms  of  the  contract  are  clear  and  defi- 
nite, a  court  of  equity  wnll  decree  specific  performance.^^  Thus, 
where  a  party  conveyed  land  to  a  railroad  corporation,  which 
agreed  to  build  a  railroad  on  the  premises,  and  part  of  the  con- 
sideration for  such  conveyance  was  an  agreement  by  the  railroad 
corporation  to  build  certain  definite  crossings,  the  railroad 
acted  but  not  in  accordance  with  the  agreement,  and  the  court 
decreed  specific  performance.^® 

§  66g.  Mutuality  in  obligations  and  remedy. — A  contract  to 
be  specifically  performed,  must  be  mutual,  so  that  at  the  time 
of  execution  it  might  have  been  enforced  by  either  of  the  parties 
against  the  other.  ^    Whenever,  therefore,  whether  from  personal 

11.  Pembroke  v.  Thorpe,  3  Swan.  13.  Halsten    v.     Savannah,     etc. 
437;   Price  v.  Mayor,  4  Hare,  506;  R.  R.  Co..  51  Ga.  199. 
Sanderson  v.  Railroad  Co.,  11  Beav.  14.  Joy  v.  St.  Louis,  138  U.  S.  1, 
497;    Rindge   v.    Baker,    57    N.    Y.  11  S.  Ct.  246. 

209,  15  Am.  Rep.  475;   Gregory  v.  15.  Rindge   v.    Baker,   57   N.   Y.' 

Ingwersen,  32  N.  J.  Eq.   199;   Ran-  209,  15  Am.  Rep.  475. 

dall  V.  Latham,  36  Conn.  48;  Will-  16.  Sanderson    v.    Railroad    Co., 

ard  V.  Ford,  16  Neb.  543,  20  N.  859.  11  Beav.  4,  97. 

12.  Brace  v.  Wehnert,  25  Beav.  1.  Louisville,  etc.  R.  R.  Co.  v. 
358;  Stanton  v.  Singleton,  126  CaL  Bodenschatz,  141  Ind.  251,  39  N.  E. 
647,  59  P.   146.  703;    Benedict  v.   Lynch,   1   Johns. 

730 


Ch.    22  PEKFORMANCE.  §    669 

incapacity,  the  nature  of  the  contract,  or  any  other  cause,  the 
contract  is  incapable  of  being  enforced  against  one  party,  that 
party  is  equally  incapable  of  enforcing  it  against  the  other, 
though  its  execution  in  the  latter  way  might  in  itself  be  free 
from  difficulty  attending  its  execution  in  the  former.^ 

Hence,  an  infant  cannot  enforce  a  contract  by  specific  per- 
formance, if  the  contract  cannot  be  enforced  against  him  f  the 
same  rule  applies  to  a  man  of  unsound  mind.* 

So  where  a  husband  agrees  to  exchange  land  belonging  to  his 
wife  for  land  of  another  party,  and  the  title  to  the  land  which 
the  husband  agreed  to  convey  is  still  in  the  wife  when  the  hus- 
band sues,  and  also  when  decree  is  to  be  pronounced,  no  decree 
of  specific  performance  can  be  made,^  because  the  right  to  the 
remedy  is  not  reciprocal. 

And  so  it  is,  as  a  general  rule,  that  specific  performance  will 
not  be  decreed  in  any  case  where  mutuality  of  obligation  and 
remedy  does  not  exist.  But  this  general  rule  is  subject  to  ex- 
ceptions. Thus,  a  covenant  to  renew  a  lease  will  be  enforced 
against  a  lessor,  though  the  lessee  is  under  no  reciprocal  obli- 
gations to  accept  an  additional  term.^ 

And  so  where  an  optional  or  unilateral  contract  to  convey 
rests  upon  a  sufficient  consideration  to  make  it  obligatory,  the 
contract  may  be  specifically  enforced.  Thus,  if  the  lessor,  in 
the  lease,  agrees  to  convey  the  demised  premises  to  the  lessee  at 
a  future  time,  at  a  fixed  price,  the  lessee  not  agreeing  to  pur- 
chase, the  latter  can  enforce  specific  performance  against  the 

Ch.    (N.  Y.)    370,  7  Am.  Dec.  4S4  2.  Hissam  v.  Parrish,  41  W.  Va. 

and    note;    Adderley    v.    Dixon,    1  686,  24  S.  E.  600,  56  Am.  St.  Rep. 

Sim.  &  St.  607;   Ten  Eyck  v.  Man-  892. 

ning,  52  N.  J.  Eq.  47,  27  A.  900;  3.  Flight    v.    Bolland,    4    Russ. 

Waring    v.    Railway    Co.;    7    Hare,  298. 

481,  492;   Van   Doren  v.   Robinson,  4.  Gapen   v.    Gapen,   41    W.    Va. 

16   N.   J.    Eq.   256;    Beard   v.   Lin-  422,  23  S.  E.  579. 

thicum,    1    Md.   Ch.   345;    Duval   v.  5.  Luce  v.  Deitz,  46   Iowa,  205; 

Myers,  2  Md.  Ch.  401,  405;  Morris  Ten  Eyck  v.  Manning,  52  N.  J.  Eq. 

V.  Fox,  45  Fed.  Rep.  406;  Lawren-  47,  27  A.  900. 

son  V.  Butler,  1  Sch.  &  L,  13,  18;  6.  Van  Doren  v.  Robinson,  16  N. 

Richards    v.    Green,    23    N.    J.    Eq.  J.  Eq.  256, 

536,  537. 

Y31 


§§  669,  670       TERMINATION-  OF  CONTRACTS.        CiL  22 

lessor,  the  presumption  being  that  the  lessee  agreed  to  pay  a 
larger  sum  as  rent,  in  consideration  of  the  optional  right  to 
purchase,  than  he  otherwise  would  have  agreed  to  pay.''  But  in 
all  cases  not  resting  on  a  similar  basis  as  these,  no  specific  per- 
formance will  be  decreed  in  any  case  when  reciprocity  of  remedy 
does  not  exist.^ 

An  option  contract  conveys  no  estate  or  interest  in  the  property. 
It  is  but  a  continuing  offer  to  sell,  which  may  be  accepted,  and 
when  accepted  takes  effect  and  not  from  the  date  of  the  offer.  The 
contract  takes  effect  upon  its  execution.  But  no  interest  in  the 
remedy  arises  until  acceptance  of  the  offer  by  the  vendee,  after 
which,  if  the  vendor  dies  or  the  buildings  are  destroyed,  the  ven- 
dee may  nevertheless  have  performance  of  his  contract,  and  the 
property  destroyed  must  be  restored  or  an  abatement  in  the 
price  be  allowed.  But  this  rule  does  not  apply  to  option  con- 
tracts, where  the  property  is  destroyed  prior  to  an  acceptance. 
The  reason  is  this:  A  contract  of  purchase  vests  an  interest  in 
the  vendee  and  the  contract  is  executory,  while  in  an  option 
contract  to  purchase  the  vendee  takes  no  interest,  and  the  con- 
tract lacks  mutuality  imtil  acceptance,  and  when  accepted  it 
does  not  relate  back  to  the  date  of  the  offer,  and  has  no  more 
effect  than  if  the  offer  had  been  made  on  the  day  of  the  accept- 
ance, and  the  election  to  accept  the  offer  relates  to  the  property 
as  it  is  on  the  date  of  acceptance.  Therefore,  if,  intervening 
the  offer  and  acceptance,  the  improvements  on  the  property  are 
destroyed  by  fire  or  otherwise,  equity  will  not  decree  specific 
performance  of  the  contract  with  the  improvements  restored 
or  with  an  abatement  in  price  equal  to  the  value  of  the  lost 
improvements.^ 

§  670.  Contracts  as  to  personal  property.  —  Although  per- 
formance of  a  contract  relating  to  personal  property  may  not 

7.  Hawralty  v.  Warren,  18  N.  J.  703 ;  Carberry  v.  Tannehill,  1  Har. 
Eq.  124,  126,  90  Am.  Dec.  613;  &  J.  (Md.)  224;  Ikerd  v.  Beavers, 
Lumley  v.  Ravenscroft  (1895),  1  Q.        106  Ind.  483,  7  N.  E.  326. 

B.  683.  9.  Caldwell  v.  Frazier,  65  Kan. 

8.  Louisville,  etc.  R.  R.  Co.  v.  24,  68  P.  1076,  35  Chi.  L.  News. 
Bodenschatz,  141  Ind.  251,  39  N.  E.        390. 

732 


Ch.    22  PERFORMANCE.  §§    670, 671 

be  demanded  as  a  right,  it  rests  in  the  sound  discretion  of  the 
court  where  compensation  in  damages  would  be  difficult,  if  not 
impossible,  owing  to  the  fact  that  the  matter  was  in  the  nature 
of  an  experiment,  contracted  for  but  not  made,  so  that  the  re- 
sult, of  necessity,  could  never  be  known/ 

But  a  court  of  equity  will  not  entertain  jurisdiction  for  spe- 
cific performance  of  an  agreement  respecting  goods,  chattels, 
stock,  choses  in  action,  and  other  things  of  a  merely  personal 
nature,  where  compensation  in  damages  furnishes  a  complete 
and  satisfactory  remedy.^ 

§  671.  When  there  is  an  adequate  remedy  at  law. — A  court 
of  equity  will  not  take  jurisdiction  to  decree  specific  perform- 
ance of  a  contract  when  there  is  an  adequate  remedy  by  action 
at  law  for  breach  of  the  contract.^  For  the  breach  of  contracts 
the  common  law  gives  a  single  remedy.  It  requires  the  party 
in  default  to  pay  a  sum  of  money  as  compensation.  Where 
the  contract  broken  is  an  obligation  to  pay  money,  that  remedy 
amounts  to  specific  performance.  But  there  are  many  contracts 
for  the  breach  of  which  such  a  remedy  is  inadequate,  and  this 
inadequacy  has  given  rise  to  the  jurisdiction  of  equity  to  en- 
force specific  performance  of  contract,  requiring  the  perform- 
ance or  omission  of  the  very  acts  agreed  upon.  The  inadequacy 
of  the  legal  remedy,  by  compensation  in  damages,  is  generally 
regarded  as  conspicuous  in  cases  of  agreements  for  the  sale  and 
purchase  of  lands,  each  parcel  differs  in  some  respects  from 
others.  Such  property  is  usually  bought  because  it  possesses 
some  feature  which  attracts  by  personal  gratification  and  de- 
termines the  purchaser  to  make  some  particular  use  of  it. 

1.  In  re  Argus  Co.,  138  N.  Y.  575,  22  S.  E.  362 :  Holley  v.  Anness, 
557,  573,  34  N.  E.  388;  William  v.  41  S.  Car.  349,  19  S.  E.  646;  Camp- 
Montgomery,  148  N.  Y.  519,  43  N.  bell  v.  Patton,  147  111.  576,  35  N. 
E.  57.  E.    364;    Young   Lock    Nut    Co.    v. 

2.  Hissam  v.  Parrish,  41  W.  Va.  Manuf.  Co.  (N.  J.  Eq.)  34  At.  Rep. 
686,  24  S.  E.  600,  56  Am.  St.  Rep.  947 ;  Lane  v.  Crossman,  58  111.  App. 
892.  386.     See,  also,  Laroussini  v.  Wes- 

3.  Ewing  V.  Litchfield,    91    Va.  lein,  48  La.  Ann.  13,  18  So.  704. 


733 


§§    671-673  TEEMINATION    OF    CONTEACTS.  Gh.    22 

So  when  the  contract  for  the  sale  of  land  provides  for  pay- 
ment of  liquidated  damages,  and  then  the  grantor  arbitrarily 
refuses  to  make  a  deed,  a  court  of  equity  will  compel  specific 
damages ;  as  the  stipulated  damages  were  not  provided  for  such 
a  breach,  but  for  failure  after  bona  fide  effort  to  make  title  to 
the  purchaser.* 

§  672.  Change  of  condition  of  one  of  the  parties.  —  Where 
there  is  a  change  of  condition  as  to  unfavorably  affect  one  of  the 
parties  to  a  contract  having  a  long  time  to  run,  this  is  no  cause 
not  to  compel  specific  performance  of  the  contract  by  the  party 
so  affected,  unless  such  change  had  made  performance  so  oner- 
ous that  the  enforcement  will  impose  great  hardship  upon 
that  party  and  will  be  of  little  or  no  benefit  to  the  other  party.^ 

A  contract  is  to  be  judged  at  the  time  when  it  was  executed, 
and  if  fair  then,  the  fact  that  it  has  become  a  hard  one  for  one 
of  the  parties,  by  the  force  of  subsequent  circumstances  or 
changing  events,  will  not  necessarily  prevent  specific  per- 
formance.® 

The  question  of  the  want  of  equality  and  fairness,  and  of 
the  hardship  of  the  contract,  should,  as  a  general  rule,  be  judged 
of  in  relation  to  the  time  of  the  contract,  and  not  by  subsequent 
events ;  and  so  mere  decline  in  value  since  the  date  of  the  con- 
tract  is  not  to  be  regarded  by  the  court  in  cases  of  this  nature.' 

§  673.  Sale  of  patent  rights. — Though  contracts  for  the  sale 
of  rights  under  patents  may  affect  only  personal  property,  yet 

4.  O'Connor  v.  Tyrrell,  53  N.  J.  U.  S.  564,  16  S.  Ct.  163;  Stuart  v. 
Eq.  15,  30  A.  1061.  Railway  Co.,  15  Beav,  513;   Morti- 

5.  Columbia  College  v.  Thacher,  mer  v.  Capper,  1  Bro.  C.  C.  156; 
87  N.  Y.  316,  41  Am.  Rep.  365;  Jackson  v.  Lever,  3  Bro.  C.  C.  605; 
Murdfeldt  v.  Railroad  Co.,  102  N.  Paine  v.  Mellor,  6  Ves.  349;  Paine 
Y.  703,  7  N.  E,  404.  v.  Hutchinson,  L.  R.  3  Eq.  Cas.  257 ; 

6.  Prospect  Park,  etc.  R.  R.  Co.  Marble  Co.  v.  Ripley,  10  Wall.  (U. 
V.    Railroad    Co.,    144    N.    Y.    152,  S.),  339. 

39    N.    E.    17,    26    L.    R.    A.    610;  7.  Lee  v.  Kirby,   104  Mass.  420; 

Franklin  Tel.  Co.  v.  Harrison,   145  Revell   v.    Hussey,   2    Ball   &   Beat. 

U.    S.    459,    12    S.    Ct.    900;    Union  280;  Paine  v.  Mellor,  6  Ves.  349. 
^ac.  R.  R.  Co.  V.  Railroad  Co.,  163 

734 


Ch.    22  PEEFOEMANCE.  §§    673-675 

equity  may  properly  take  jurisdiction  of  them  and  decree  spe- 
cific performance.^  Rights  acquired  under  letter  patents  for 
inventions  are  of  such  a  peculiar  nature  that  they  are  justly 
considered  proper  subject-matter  for  suits  for  specific  perform- 
ance.^ But  a  contract  to  assign  a  patent  will  not  he  enforced 
where  the  patent   is  worthless.^ 

§  674.  Sale  of  personalty. — A  court  of  equity  will  not  gener- 
ally decree  specific  performance  of  a  contract  for  sale  of  per- 
sonalty, not  because  of  its  personal  nature,  but  because  the 
damages  at  law,  calculated  on  the  market  price  of  the  stock  or 
goods  or  other  personalty,  are  a  complete  remedy  to  the  pur- 
chaser as  the  delivery  of  the  goods  or  stock  contracted  for,  inas- 
much as  with  the  damages  he  may  ordinarily  purchase  the  same 
quantity  of  the  like  stock  or  goods.*  But  a  court  of  equity  will 
decree  the  execution  of  a  trust  of  personalty.^ 

§  675.  Sale  of  chattels  having  a  special  value. — But  a  court 
of  equity  will  decree  the  delivery  of  specific  articles  which  have 
a  special  and  peculiar  value,  and  where  the  remedy  at  law  in 
damages  would  be  utterly  inadequate,  and  where  the  chattel 

1.  Coibin  V.  Tracy,  34  Conn.  (Tenn.),  478,  54  Am.  Dec.  51; 
325;  Electric  Secret  Service  Co.  Cuddee  v.  Eutter,  1  P.  Wm.  569; 
V.  Manuf.  Co.,  125  Mo.  140,  28  S.  W.  Johnson  v.  Brooks,  93  N.  Y.  337; 
486;  Binney  v.  Annan,  107  Mass.  Treasurer  v.  Mining  Co.,  23  Cal. 
94,  9  Am.  Rep.  10.  390;  Eckstein  v.  Downing,  64  N.  H. 

2.  Electric  Secret  Service  Co.  v.  248,  10  Am.  St.  Rep.  404,  9  A.  626; 
Manuf.  Co.,  125  Mo.  140,  26  S.  W.  Todd  v.  Taft,  7  Allen  (Mass.),  371; 
486.  Xe^v  England  Trust  Co.  v.  Abbott, 

3.  Johnson  v.  Steffons,  54  111.  162  Mass.  148,  34  N.  E.  432,  27  L. 
App.  196.  R.  A.  271  and  note. 

4.  Bumgardner  v.  Leavitt,  35  5.  Kimball  v.  Morton,  5  N.  J. 
W.  Va.  194,  13  S.  E.  67,  12  L.  R.  Eq.  26,  43  Am.  Dee.  621;  ChaflFee  v. 
A.  776  and  note;  Chalfee  v.  Sprague,  16  R.  I.  189,  13  A.  121; 
Sprague,  16  R.  I.  189,  13  A.  121;  Goodwin  Gas  Stove's  Appeal  117 
Northern  Trust  Co.  v.  Markell,  61  Pa.  St.  514,  12  A.  736,  2  Am.  St. 
Minn.  271,  63  N.  W.  735;  Rollins  Rep.  696;  Johnson  v.  Brooks,  93 
Invest.  Co.  v.  George,  48  Fed.  Rep.  K  Y.  337;  Krohn  v.  Williamson, 
776;  Womack  v.  Smith,  11  Humph.  62  Fed.  Rep.  869. 

735 


§§  675,  676       TERMINATION  OF  CONTEACTS.       CIl  22 

is  a  family  relic  or  ornament.®  And  this  special  value  may  be 
on  account  of  their  beauty,  or  some  other  interest  attaching  to 
themJ 

So  equity  will  decree  the  specific  performance  of  a  contract 
to  convey  personal  property  where  like  property  cannot  be  ob- 
tained elsewhere  or  for  other  reasons  an  action  at  law  for  dam- 
ages will  afford  an  adequate  remedy.^ 

§  676.  Supervision  of  the  court — Continuous  acts. — A  court 
of  equity  will  not  decree  specific  performance  of  contracts  re- 
quiring continuous  personal  action,  and  running  through  an 
indefinite  period  of  time,^  and  which  by  their  terms  call  for  a 
succession  of  acts  whose  performance  cannot  be  consummated 
by  one  transaction,  and  which  require  protracted  supervision 
and  direction,^  Thus,  a  court  of  equity  would  not  undertake 
to  compel  a  contractor  to  build  a  railroad  or  a  warehouse,  nor 
can  it  successfully  an  agreement  for  the  operation  of  a  mine 
or  a  manufactory.  Such  relief  as  that  is  not  practicable.  A 
court  cannot  compel  a  party  to  employ  men  to  work  his  mine, 
operate  his  machinery,  furnish  necessary  supplies,  produce  the 
coal,  and  deliver  it  to  the  other  party.  A  succession  of  continu- 
ous acts  calling  for  his  personal  services  and  for  the  exercise 
of  his  judgment,  experience  and  tact  in  reference  to  a  compli- 
cated business,  cannot  be  specifically  compelled.^ 

6.  Cheale  v.  Kenward,  3  DeG.  &  1.  Louisville,  etc.  R.  R.  Co.  v. 
J.  27;  Manton  v.  Ray,  18  R.  I.  672,  Bodenschatz,  141  Ind.  251,  39  N.  E. 
20  A.  998,  49  Am.  St.  Rep.  703 ;  Port  Clinton,  etc.  R.  R.  Co.  v. 
811;  Womack  v.  Smith,  11  Railroad  Co.,  13  Ohio,  544. 
Humph.  (Tenn.)  478,  54  Am.  Dec.  2.  Grape  Creek  Coal  Co.  v.  Spell- 
51;  Lee  v.  Core,  4  Cold.  (Tenn.)  man,  39  111.  App.  630;  Wilson  v. 
395.  Railway  Co.,  9  Ch.  App.  279. 

7.  Buxton  V.  Lester,  3  Atk.  384,  3.  Grape  Creek  Coal  Co.  v.  Spell- 
Womack  v.  Smith,  11  Humph.  man,  39  HI.  App.  630;  Union  Pac, 
(Tenn.)   478,  54  Am.  Dec.  51.  etc.  R.  R.  Co.  v.  Railroad  Co.,  163 

8.  Manton  v.  Ray,  18  R.  L  672;  U.  S.  564,  16  S.  Ct.  1173;  Electric 
20  A.  998,  49  Am.  St.  Rep.  811;  Light  Co.  v.  Railroad  Co.,  109  Ala. 
Cheale  v.  Kenward,  3  DeG.  &  J.  190,  19  So.  721,  55  Am.  St.  Rep. 
27.  927;    Thiebaud    v.    Furniture    Co., 


'36 


Ch.    22  PERFORMANCE.  §§    676,  677 

But  a  court  of  equity  will  enforce  a  contract  for  a  long  time, 
such  as  the  running  of  a  railroad  by  a  receiver,  and  make  sup- 
plemental decrees  as  occasion  requires.* 

§  677.  Contracts  involving  the  exercise  of  skill,  personal 
labor  and  cultivated  judgment. — A  court  of  equity  will  not 
enforce  specific  performance  of  a  contract  where  the  duties  are 
continuous  and  involve  the  exercise  of  skill,  personal  labor,  and 
cultivated  judgment.  Thus,  it  will  not  compel  the  delivery  of 
marble  of  a  certain  kind,  and  in  blocks  of  a  kind  that  the  court 
is  incapable  of  determining  whether  they  accord  with  the  con- 
tract or  not.^  If  performance  be  decreed  in  such  a  case,  the 
cause  of  action  must  remain  in  court  to  the  end  of  the  time  of 
the  contract,  no  matter  how  long  the  time,  and  the  court  may 
be  called  upon  to  determine,  not  only  whether  the  prescribed 
quantity  of  the  subject-matter  has  been  delivered,  but  whether 
every  piece  is  from  the  right  place,  whether  it  is  sound,  whether 
it  is  of  suitable  size,  or  shape,  or  proportion.  A  court  of  equity 
cannot  superintend  the  execution  of  such  a  decree.  It  is  im- 
practicable. And  equity  will  not  enforce  part  of  a  contract, 
unless  that  part  is  clearly  severable  from  the  remainder.^ 

While  a  positive  and  a  negative  stipulation  of  an  agreement 
form  but  one  contract,  a  court  may  interfere  to  prevent  the  vio- 
lation of  the  negative  stipulation,  although  it  cannot  enforce 
specific  performance  of  the  entire  contract.  Thus,  where  a  pro- 
fessional singer  was  sued  by  the  proprietor  of  a  theatre  for  spe- 

143  Ind.  340,  42  N.  E.  741 ;   Ewing  4.  Joy  v.  St.  Louis,  138  U.  S.  1, 

V.  Litchfield,   91  Va.   575,  22  S.  E.  47,  11  S.  Ct.  243.     See,  also,  Storer 

362 ;    Louisville,   etc.  R.   R.   Co.  v.  v.  Railway  Co.,  2  Younge  &  Col.,  N. 

Bodenschatz,  141  Ind.  251,  39  N.  E.  R.  48;  Green  v.  Railway  Co.,  L.  R. 

703;    Atlanta,    etc.    R.    R,    Co.    v.  13  Eq.   44;    Prospect  Park,  etc.  R. 

Speer,    32    Ga.    550,    79    Am.    Dec.  R.  Co.  v.  Railroad  Co.,  144  N.  Y. 

305;  Beck  v.  Allison,  56  N.  Y.  366,  152,  39  N.  E.  17,  26  L.  R.  A.  610. 
15    Am.    Rep.    430;    Blanchard    v.  1.  Marble  Co.  v.  Ripley,  10  Wall. 

Railroad  Co.,  31  Mich.  43,  18  Am.  (U.  S.),  339;  Louisville,  etc.  R.  R. 

Rep.  142;  Columbus,  etc.  R.  R.  Co.  Co.  v.   Bodenschatz,    141    Ind.   251, 

V.  Watson,  26  Ind.  50;  New  South  39  N.  E.  703. 

Wales,  etc.  R.  R.  v.  Wythes,  Kay  &  2.  Ogden  v.  Fossick,  9  Jurist,  N. 

J.  186.  S.   238. 

737 


§  677  TERMINATION  OF  CONTEACTS.  CIl.  23 

cific  performance  of  a  contract  to  sing  in  his  theatre  upon  cer- 
tain terms,  for  a  certain  time,  and  not  to  sing  elsewhere  during 
that  period,  the  court  interfered  to  prevent  the  violation  of  the 
negative  stipulation,  but  not  that  of  the  positive,  that  is,  it 
would  not  enforce  the  contract  to  sing,  hut  would  enjoin  the 
party  from  singing  elsewhere.^  This  doctrine  is  now  generally 
received  as  the  better  rule.* 

The  general  rule  is  that  a  contract  for  services  cannot  be 
specifically  enforced.^  ITor  can  this  be  done  indirectly  by  re- 
straining the  employe  in  equity  from  leaving  the  service.^  But 
if  the  contract  contains  a  stipulation  not  to  perform  services  for 
another  during  the  term,  that  provision  may  be  enforced  by 
an  injunction,  provided  the  services  are  of  an  unique  and  extra- 
ordinary character  which  cannot  be  obtained  elsewhereJ  In 
the  English  cases  an  express  negative  stipulation  is  required 
or  the  injunction  will  not  issue.  In  some  of  the  American  cases 
the  agreement  to  serve  the  hirer  during  a  certain  term  is  con- 
strued as  an  agreement  to  serve  no  one  else  during  that  term. 

In  nearly  all  the  cases  is  involved  the  exercise  of  mental  and 
intellectual  powers, — authors,  singers,  actors,  and  the  like.^ 

Acrobats  and  tumblers  do  not  come  under  the  class  whose 
performance  is  unique  or  of  unusual  character.     So  an  injunc- 

3.  Lumley  v.  Wagner,  1  DeGex,  209,  24  U.  S.  App.  239;  Toledo 
M.  &  G.  604,  overruling  Kemble  v.  Railroad  Co.  v.  Penn.  Co.,  54  Fed. 
Kean,  6  Sim.  333,  and  Kimberley  v.        Rep.  743. 

Jennings,  6  Sim.  340.  7.  Lumley  v.  Wagner,  1  DeG.  M. 

4.  South  Wales  R.  R.  Co.  v.  &  G.  604,  5  De  G.  &  Sm.  485 ;  Grim- 
Wythes,  5  DeG.  M.  &  G.  880;  Catt  ston  v.  Cunningham  (1894),  1  Q. 
V.  Toole,  L.  R.  4  Ch.  App.  654;  B.  125;  Whitford  Chemical  Co.  v. 
Peabody  v.  Norfolk,  98  Mass.  452,  Hardman,  2  Ch.  416,  disapproving 
96  Am.  Dee.  664.  Compare  Mair  Montague  v.  Flocton,  16  L.  R.  Eq. 
V.  Tea  Co.,  L.  R.  1  Eq.  411;  Hope  189;  Duff  v.  Russell,  133  N.  Y. 
V.  Hope,  22  Beav.  351;  Sanders  v.  678,  31  N.  E.  622. 

Rodway,   16  Beav.  207 ;   Paxton  v.            8.  Lumley  v.  Wagner,  1  DeG.  M. 

Newton,  2  Sm.  &  Gif .  437.  &  G.  604 ;  Daly  v.  Smith,  49  How. 

5.  Stocker  v.  Brockilbank,  3  Pr.  150;  Hahn  v.  Concordia  Soc, 
Mac.  N.  &  G.  250.  42  Md.  465 ;  McCaull  v.  Graham,  16 

6.  Arthur  v.  Cakes,  63  Fed.  Rep.  Fed.  Rep.  37;  Fredericks  v.  Mayer, 
.310,  25  L.  R.  A.  4r4,   11  C.  C.  A.        13  How.  Pr.  567. 

738 


Ch.    22  PERFOKMANCE.  §§    67Y,  678 

tion  will  not  lie  against  them  to  prevent  service  for  another 
party.^  The  same  rule  applies  to  a  sketch  artist.^"  So  an  in- 
junction will  not  lie  to  restrain  a  ball  player  from  engaging  to 
another  party."  But  in  another  case  a  base  ball  player  was 
restrained  from  hiring  to  another  party,  because  his  services 
are  of  such  an  unique  character,  and  display  such  a  special 
knowledge,  skill  and  ability,  as  render  them  of  peculiar  value 
to  the  employer,  and  difficult  of  substitution,^^  but  this  decision 
is  against  the  weight  of  authority.  A  prize  fighter  will  not  be 
restrained  from  breaking  his  contract.  The  court  said  that  the 
relief  sought  must  be  refused,  "  not  out  of  tenderness  to  the 
defendant,"  but  because  the  contract,  the  enforcement  of  which 
is  negatively  sought,  is  illegal ;  ex  pacto  illicito  non  oritur 
aciio}^ 

A  skilled  employe  who  enters  the  employment  with  the  agree- 
ment that  whatever  improvements  he  shall  make  in  the  machin- 
ery shall  inure  to  the  employer,  is  bound,  as  the  contract  is 
valid." 

§  678.  Tender  of  performance. — The  plaintiff,  before  bring- 
ing suit  must  tender  performance.^  The  refusal  to  accept  ten- 
der of  performance  of  a  contract  based  solely  upon  claim  of 
forfeiture,  makes  it  immaterial  whether  such  tender  strictly 

9.  Cort  V.  Lassard,  18  Oreg.  221,  Lajoie,  202  Pa.  St.  210,  51  A.  973, 
22  P.  1054,  6  L.  R.  A.  653  and  58  L.  R.  A.  227,  90  Am.  St.  Rep. 
note,  17  Am.  St.  Rep.  726.  G27  and  note. 

10.  Strobridge  Lith.  Co.  v.  13.  McDonald  v.  McCallon, 
Crane,  58  Hun,  611,  12  N.  Y.  S.  (Baltimore  Cir.  Ct.),  33  Chi.  L. 
834,  35  N.  Y.  St.  473.                                  News,    438. 

11.  American  Baseball,  etc.  Co.  14.  Thibodeau  v.  Hillreth,  63  L. 
V.  Harper,  St.  Louis  Circuit  Court.  R.  A.  480,  124  Fed.  Rep.  892,  60 
54  Cent.  Law  Jour.  449  and  note  by  C.  C.  A.  78.  See  "  Mutuality  in  the 
John  D.  Lawson.  This  decision  I'nforcement  of  Contracts  lor  Per- 
was  rendered  May,  1902.  Of  course,  sonal  Service." — 55  Cent.  Law  Jour, 
this    decision    comes    from    a    nisi  64. 

priu^  court.    The  note  is  a  valuable  1.  Soper   v.   Gabe,   55   Kan.    646, 

exposition  of  the  law  on  this  sub-  41    P.    969;     Kelsey    v.    Cro^\'ther, 

ject.  162  U.  S.  404,  16  S.  Ct.  808. 

12.  Philadelphia    Ball     Club    v. 

739 


§§  6Y8-680       TERMINATION  OF  CONTBACTS.        Clh-  22 

conforms  to  the  contract^  If  circumstances  are  sucli  that  a 
tender  would  be  of  no  importance,  and  must  be  refused  by  the 
other  party,  it  need  not  be  made.^ 

But  general  tender  of  performance  must  be  made.  Thus,  if 
the  vendee  of  land  wishes  to  compel  the  other  to  fulfill  the  con- 
tract, he  must  make  his  part  of  the  agreement  precedent,  and 
cannot  proceed  against  the  other  without  actual  performance 
of  the  agreement  on  his  part  or  tender  of  performance.* 

§  679.  Time  of  performance. — ^While  the  court  of  equity  does 
not  regard  time  as  of  the  essence  of  the  contract  unless  it  is  so 
expressly  stipulated,  yet  it  will  require  of  one  who  seeks  specific 
performance  of  a  contract  that  he  shall  not  be  guilty  of  unrea- 
sonable delay. ■^  Still  in  contracts  giving  a  person  an  option  to 
purchase  a  chattel  for  a  given  price  within  a  limited  time,  time 
is  then  of  the  essence  of  the  contract  so  as  to  prevent  specific 
performance  on  failure  without  excuse  to  purchase  within  the 
specified  time.^ 

§  680.  Contracts  subject  to  conditions. — ^When  a  condition 
is  precedent  and  material  it  must  be  performed  before  a  court 
of  equity  will  take  jurisdiction  to  enforce  performance.  But 
provisions  in  a  contract  for  referees  in  certain  contingencies, 
which  are  not  of  the  essence  of  the  contract,  are  not  ground  for 
refusal  of  specific  performance.^  And  a  party  may  waive  such 
condition  by  his  own  acts,  and  then  the  contract  may  be  spe- 
cifically performed.* 

2.  Monson  v.  Bragdon,  159  III.  Rep,  251;  Chabot  v.  Park  Co.,  34 
61,  42  N.  E.  383.  Fla.   258,    15   So.    156,   43   Am.   St. 

3.  Bucklen  v.  Hasterlik,  155  111.        Rep.  192. 

423,  40  N.  E.  561.  2.  Roberts  v.  Norton,  66  Conn.  1, 

4.  Bank  v.   Hagner,   1   Pet.    (U.        33  A.  532. 

S.),  455;  Marble  Co.  v.  Ripley,  10  3.  Union   Pacific,   etc.   R.   R.   Co. 

Wall.     (U.    S.),    339;    Jenkins    v.  v.  Railroad  Co.,  163  U.  S.  564,  16  S. 

Locke,  3  App.  D.  C.  485.  Ct.   1173. 

1.  Tate   V.   Development   Co.,   37  4.  Work  v.  Walsh,   160  111.  468, 

Fla.  439,  20   So.  542,   53  Am.   St.  43  N.  E.  719. 


740 


Ch.    22  PEEFOKMANCE.  §    681 

§  68i.  Part  performance. — Where  a  contract  is  entire  and 
indivisible,  it  must  be  enforced  as  an  indivisible  interger,  or 
not  at  all ;  it  cannot  be  enforced  by  parts.^  Hence,  a  vendor 
cannot  enforce  the  specific  performance  as  to  a  part  of  a  con- 
tract for  the  purchase  of  land.  If  enforcible  at  all  it  must  be 
in  its  entirety.^ 

1.  Dalby  v.  Pullman,  3  Sim.  29;        Fed.  Rep.  133;  Cato  v.  Thompson,  9 
Baldwin  v.  Fletcher,  48  Mich.  604,        Q.  B.  Div.  616. 
12   N.    872;    Kenner  v.   Bitely,   45  2.  Hill   v.   Mining  Co.,    119  Mo. 

9,  24  S.  W.  223. 


741 


CHAPTER  XXIII. 

Breacli  and  Discharge. 


ARTICLE  I. 

Measure  of  Damages. 

Section  682.  Object  in  Awarding  Damages. 

683.  Rule  for  Estimating  Damages. 

684.  As  to  Common  Carrier. 

685.  Sale  of  Property  for  Special  Purpose. 

686.  Breach  of  Contract  for  Personal  Services — Duty  of  Laborer 

to  Protect  Himself. 

687.  Contract  Not  for  the  Use  of  Some  Special  Instrumentality. 

688.  Part  Performance. 

689.  Appreciation  in  the  Value  of  Land. 

690.  Uncertain  and  Contingent  Damages. 

691.  Interest  Upon  Unliquidated  Damages. 

692.  Breach  by  Telegraph  Company. 

693.  Breach  by  Telegraph  Company — Mental  Suffering. 

694.  Contract  to  Furnish  Special  Material. 

695.  Profits  as  Damages — General  Rule. 

696.  Profits  which  Would  Have  Been  Realized. 

697.  Contingent  Profits  not  Allowed. 

698.  Resale  by  Purchaser. 

699.  Building  Contracts. 

§  682.  Object  in  awarding  damages. — The  primary  object  in 
awarding  damages  at  common  law  is  compensation  to  the  in- 
jured party,  but  the  damages  allowed  for  this  purpose  must  be 
the  natural  and  proximate  result  of  the  wrongdoer.^  This  is 
not,  however,  the  invariable  rule  in  all  cases.^  Where  a  party 
sustains  loss  by  reason  of  a    breach  of  contract,  he  shall,  so  far 

1.  Hodges  V.   Fries,   34   Fla.   63,  2.  Messmore  v.  Lead  Co.,  40  N. 

15   So.   682;    Robinson  v.  Hyer,   35        Y.  422. 
Fla.  544,  17  So.  745. 

742 


Ch.    23  BREACH    AND    DISCHARGE.  §§    682,  683 

as  money  can  do  it,  be  placed  in  the  same  situation,  with  respect 
to  damages,  as  if  the  contract  had  been  performed.^ 

§  683.  Rule  for  estimating  damages. — It  may  be  laid  down 
as  the  general  rule  that  where  one  party  has  broken  the  con- 
tract, the  damages  which  the  other  party  should  receive  in  re- 
spect to  such  breach  of  contract  should  be  such  as  may  fairly 
and  reasonably  be  considered  either  arising  naturally — that  is, 
according  to  the  usual  course  of  things,  from  such  breach  of 
contract  itself,  or  as  may  reasonably  be  supposed  to  have  been 
in  the  contemplation  of  both  parties,  at  the  time  they  made  the 
contract,  as  the  probable  result  of  the  breach  of  it.  And  if  the 
special  circumstances  under  which  the  contract  was  actually 
made  were  communicated  by  the  plaintiff  to  the  defendant,  and 
thus  known  to  both  parties,  the  damages  resulting  from  the 
breach  of  such  a  contract,  which  they  would  reasonably  con- 
template, would  be  the  amount  of  injury  which  would  ordinar- 
ily follow  from  the  breach  of  contract  under  these  special  cir- 
cumstances so  known  and  communicated.  But,  on  the  other 
hand,  if  these  special  circumstances  were  wholly  unknown  to 
the  party  breaking  the  contract,  he,  at  the  most,  could  only  be 
supposed  to  have  had  in  his  contemplation  the  amount  of  injury 
which  would  arise  generally  and  in  the  great  multitude  of  cases 
not  affected  by  any  special  circumstances,  from  such  a  breach 
of  contract.^ 

3.  McHose  v.  Fulmer,  73  Pa.  St.  road  Co.,  7  Hurl.  &  N.  79;  Elbinger 
365 ;  Chicago,  etc.  E.  R.  Co.  v.  Hale,  Actien-Gesellschafft  v.  Armstrong, 
83  111.  360.  25  Am.  Rep.  403;  Bell  v.  L.  R.  9  Q.  B.  473;  Wilson  v.  Rail- 
Reynolds,  78  Ala.  511.  road  Co.,  9  C.  B.  N.  S.  632;  Robin- 

1.  Hadley  v.  Baxendale,  9  Exch.  son  v.  Harman,  1  Exch.  855;  Beau- 

341;    Vicksburg,  etc.   R.   R.   Co.   v.  mont   v.   Greathead,   2   C.   B.   494; 

Ragsdale,  46  Miss.  458 ;   Griffin  v.  Horton  v.  Bauer,  129  N.  Y.  148,  29 

Colver,   16  N.  Y.  490,  69  Am.  Dec.  N.  E.   1;   Barnes  v.  Brown,  130  N. 

78  and  note;  Richardson  v.  Chyno-  Y.   372,  29  N.   E.  760;    Priestly  v. 

weth,  26  Wis.  656 ;  Thomas  v.  Rail-  Railroad  Co.,  26  111.  205 ;  Weber  v. 

road  Co.,  62  Wis.  642,  22  N.  827,  Squier,  51  Mo.  App.  601;   Grebert- 

51  Am.  Rep.  725;  Smud  v.  Foard,  1  Borgnis  v.   Nugent,    15   Q.   B.   Div. 

El.  &  El.  602 ;  Gee  v.  Railroad  Co.,  85.     Compare  Hamilton  v.  Magill, 

6  Hurl.  &  N.  211;  CoUard  v.  Rail-  L.  R.  12  Ire.  202. 

743 


§§    683,  684  TERMINATION    OF    CONTEACTS.  CiL    23 

But  it  is  not  practicable  to  state  a  fixed  rule  for  estimating 
damages  for  many  contracts,  but  the  following  rules  are  well 
settled:  1.  The  proximate  and  natural  consequences  of  the 
breach  must  always  be  considered.  2.  The  consequences  must 
be  such  as,  from  the  nature  and  subject-matter  of  the  contract, 
may  be  reasonably  deemed  to  have  been  in  the  contemplation  of 
the  parties  at  the  time  of  the  execution  of  the  contract.  3.  But 
damages,  which  may  fairly  be  supposed  not  to  have  been  the 
necessary  and  natural  sequence  of  the  breach,  shall  not  be  re- 
covered, unless  by  the  terms  of  the  agreement,  or  by  direct 
notice,  they  are  brought  within  the  expectation  of  the  parties. 
4.  Loss  of  profits  in  business  cannot  be  allowed,  unless  the  data 
of  estimation  are  so  definite  and  certain  that  they  can  be  ascer- 
tained reasonably  by  calculation,  and  then  the  party  in  fault 
must  have  had  notice,  either  from  the  nature  of  the  contract 
itself,  or  by  explanation  of  the  circumstances,  at  the  time  the 
contract  was  made,  that  such  damages  would  ensue  from  non- 
performance. 5.  If  the  contract  is  made  with  reference  to  em- 
barking in  a  new  business,  the  speculative  profits  which  might 
be  supposed  to  arise,  but  which  were  defeated  because  of  a 
breach  of  contract,  which  delayed  the  business,  cannot  be  looked 
to  as  an  element  of  damages.  6.  If  the  delay  in  the  transpor- 
tation of  machinery,  to  be  applied  to  a  special  use,  and  that  is 
known  to  the  carrier,  he  is  responsible  for  such  damages  as  are 
fairly  attributable  to  the  delay ;  that  is,  such  as  the  value  of  the 
use  of  the  machinery,  to  be  tested  by  its  rental  price,  or  other 
approximate  means,  and  the  expense  of  handling  and  the  like. 
7.  The  party  injured  by  the  delay  must  not  remain  inactive, 
but  should  make  reasonable  exertion  to  help  himself,  and  thereby 
reduce  his  losses  and  diminish  the  responsibility  of  the  party 
in  default  to  him.^ 

§  684.  As  to  common  carrier. — As  a  general  rule,  the  appro- 
priate compensation    for   the   breach   of   a    contract  to  deliver 

2.  Vicksburg,  etc.  R.  R.  Co.  v. 
Raggsdale,  46  Miss.  458,  by  Simer- 
all,  J. 

744 


CTl.    23  BREACH    AND    DISCHARGE.  §§    684,  686 

goods,  is  their  market  value  in  money  at  the  time  and  place  at 
which  they  should  have  been  delivered,  with  interest  thereon ; 
and  such  is  the  rule  in  an  action  against  a  common  carrier  if 
the  goods  are  never  delivered.^  It  is  also  settled  that  when  a 
carrier  negligently  delays  the  delivery  of  goods,  knowing  that 
the  OAvner  intends  to  sell  them  in  the  market,  he  is  liable  for  the 
diminution  in  their  market  value  during  the  delay.* 

Whenever,  by  reason  of  inexcusable  delay  of  the  carrier,  the 
goods  are  not  delivered  until  after  they  have  diminished  in 
market  value,  the  measure  of  damages  is  the  amount  of  the 
diminution ;  this  rule  depends  on  the  general  market  value  of 
the  goods,  and  involves  no  question  of  contingent  or  speculative 
profits,  and  no  consideration  of  any  other  contracts  made  or 
omitted  to  be  made  by  the  plaintiff  in  view  of  his  contract  with 
the  defendant.^ 

§  685.  Sale  of  property  for  special  purpose.  —  Ordinarily 
upon  the  sale  and  delivery  of  a  chattel  accompanied  by  a  war- 
ranty, which  is  broken,  the  measure  of  damages  is  the  differ- 
ence between  its  value  had  it  been  as  warranted  and  as  it  proved 
.to  be.  But  this  rule  does  not  apply  to  cases  where  a  manufac- 
turer sells  goods  to  a  purchaser  to  be  used  for  a  particular  pur- 
pose, which  is  known  to  the  vendor  at  the  time  of  the  sale,  for 
then  a  more  liberal  rule  prevails  than  in  cases  where  like  articles 
are  sold  as  merchandise  for  general  purposes.  In  the  case  of  sale 
for  a  particular  purpose,  the  profits  and  expenses  incurred  may 
be  recovered.^     This  doctrine  is  that  where  a  party  sustains  a 

3.  Spring  v.  Haskell,  4  Allen  Wilson  v.  Railroad  Co.,  9  C.  B. 
(Mass.),  112.  N.  S.  632;  Collard  v.  Railroad  Co., 

4.  Smfth  V.  Railroad  Co.,  12  Al-  7  Hurl.  &  N.  79.  See,  also.  Great 
len  (Mass.),  531,  9  Am.  Dec.  166;  Western  R.  R.  Co.  v.  Redmayne, 
Cutting  V.  Railroad  Co.,  13  Allen  L.  R.  1  C.  P  330;  Lord  v.  Railroad 
(Mass.),  531;  Hamilton  v.  McPher-  Co.,  L.  R.  2  C.  P.  345;  Smud  v. 
son.  28  N.  Y.  77,  84  Am.  Dec.  330;  Foard,  1  El.  &  El.  602. 

King  V.  Woodbridge,  34  Vt.  565.  1.  Passinger  v.  Thorburn,  34  N. 

5.  Fox  V.  Harding,  7  Cush.  Y.  634,  90  Am.  Dec.  753  and  note; 
(Mass.),  516;  Le  Peinter  v.  Rail-  Van  Wyck  v.  Allen,  69  N.  Y.  61; 
Toad  Co.,  2  L.  T.  N.  S.  170;  Gee  Booth  v.  Mill  Co.,  60  N.  Y.  487,  25 
V.  Railroad  Co.,  6  Hurl.  «&  N.  211;  Am.   Rep.    136;  Swain  v.  Schieffelin, 

745 


§    685  TEKMINATIOIT    OF    CONTRACTS.  CL    23 

loss  by  reason  of  a  breach  of  a  contract,  he  shall,  so  far  as  money 
can  do  it,  be  placed  in  the  same  situation,  with  respect  to  dam- 
ages, as  if  the  contract  had  been  performed.^ 

The  vendor,  having  sold  the  articles  with  the  knowledge  that 
they  were  purchased  for  a  particular  purpose,  should  be  held 
liable  for  such  damages  as  naturally  flow  from  the  breach  of 
his  contract,  and  which  he,  or  any  reasonable  man,  might  appre- 
hend would  follow  the  breach.  Thus,  where  a  purchaser  buys 
coloring  matter  for  his  ice  cream  and  uses  it,  whereby  many 
persons  who  ate  it  were  made  sick,  and  upon  analysis  of  this 
ingredient  it  was  found  to  contain  arsenic,  and  the  purchaser 
thereupon  destroyed  the  rest  of  the  ice  cream  in  which  it  had 
been  used,  he  can  recover  of  the  vendor  of  the  coloring  matter 
the  value  of  the  goods  destroyed  and  the  damage  occasioned  by 
the  loss  of  customers  caused  by  the  sale  of  the  poisonous  cream.' 

So  far  as  the  plaintiff's  property  was  injuriously  affected  or 
contaminated  by  the  use  of  the  coloring  matter  sold  him  by  the 
vendor,  the  damages  were  attributed  directly  to  the  act  com- 
plained of,  and  to  that  extent  he  must  recover.*  An  injured 
party  is  allowed  to  charge  the  other  with  loss  on  collateral  con- 
tracts, on  proving  notice,  which  in  the  absence  of  such  notice 
would  not  be  considered  within  the  contemplation  of  the  parties.^ 

Some  of  the  courts  hold  that  a  bare  notice  of  special  conse- 
quences which  may  result  from  the  breach,  unless  under  such 
circumstances  as  to  imply  that  it  formed  the  basis  of  the  agree- 

134    N.    Y.    471,    31    N.    E.    1025;  2.  Messmore  v.  Lead  Co.,  40  N. 

White  V.  Miller,  71  N.  Y.  118,  27  Y.  422. 

Am.  Rep.   13;   White  v.  Miller,   78  3.  Swain  v.  Schieflfelin,   134  N.  Y. 

N.  Y.  393,  34  Am.  Rep.  544;  Mess-  471,  31   N.  E.   1025,  distinguishing 

more  v.   Lead  Co.,  40  N.  Y.   422;  Grain  v.  Petrie,  6  Hill  (N.  Y.),  522, 

Hammond  v.   Bussey,   57   L.  J.   Q.  41  Am.  Dec.  705. 

B.  58;  Hammer  v.  Schoenfelder,  47  4.  Jeffrey  v.   Bigelow,   13   Wend. 

Wis.    455,    2    N.    1129;    Blagen    v.  (N.    Y.),    518,    28   Am.   Dec.    476; 

Thompson,  23  Oreg.  239,  31  P.  647;  Mullett  v.   Mason,   L.   R.    1    C.   P. 

Carnegie  v.  Holt,  99  Mich.  606,  58  559. 

N.    W.    623;    Fleming   v.    Beck,    48  5.  Hadley  v.  Baxendale,  9  Exch. 

Pa.  St.  309 ;  Hlinois  Cent.  R.  R.  Co.  341;    Hammer   v.    Schoenfelder,   47 

V.  Cobb,  64  111.  128.  Wis.  455,  2  N.  1129. 

Y46 


CTl.    23  BKEACH    AND    DISCHARGE.  §§    685-687 

ment,  is  not  sufficient  to  make  the  vendor  liable  for  damages 
arising  out  of  special  circumstances.® 

§  686.  Breach  of  contract  for  personal  services  —  Duty  of 
laborer  to  protect  himself. — The  rule  that  one  who  has  been 
damaged  by  a  breach  of  a  contract  should  do  all  that  reasonably 
lies  within  his  power  to  protect  himself  from  loss,  by  seeking 
another  contract  of  like  character,  the  profits  of  which  should 
be  applied  in  mitigation  of  such  damages,  is  correct  as  applied 
to  some  classes  of  cases,  especially  to  contracts  for  personal 
service,  or  for  the  use  of  some  special  instrumentality  either 
with  or  without  connection  with  such  personal  service.'' 

Thus,  in  a  contract  for  teaching  a  school,  which  was  broken 
by  a  refusal  to  receive  the  services,  the  teacher  was  in  duty 
bound  to  make  reasonable  exertion  to  obtain  other  like  employ- 
ment in  the  same  vicinity,  and  therefore,  if  possible,  to  miti- 
gate the  damages.^  And  so,  if  an  actress  be  refused  employ- 
ment in  her  profession  according  to  agreement,  she  must  en- 
deavor to  secure  such  employment  elsewhere  to  mitigate  the 
damages.' 

§  687.  Contract  not  for  the  use  of  some  special  instrumen- 
tality.— A  contract,  not  for  the  use  of  some  special  instrumen- 
tality, or  for  personal  services,  does  not  come  under  the  rule 
that  the  injured  party  must  seek  another  contract  of  similar 
nature  in  order  to  mitigate  damages.^  But  in  contracts  of 
special  instrumentality,  the  party  injured  must  do  all  within 
his  power  to  mitigate  his  damages.     Thus,  in  a  case  of  a  breach 

6.  Friend,  etc.  L\im.  Co.  v.  Mil-  8.  Gillis  v.  Space,  63  Barb.  (N. 
ler,  67  Cal.  464,  8  P.  40;  Bridges  V.  Y.),  177;  Benziger  v.  Miller,  50 
Stickney,    38    Me.    361;     Snell    v.        Ala.  206. 

Cottingham,  72  111.  161;  McKinnon  9.  Harvard  v.  Daly,  61  N.  Y.  362, 

V.   McEwan,   48   Mich.    108,    UN.  19  Am.  Rep.  285.   See,  also,  Watson 

828,    42    Am.    Rep.    458    and    note;  v.   Brick   Co.,   3   Wash.   283,   28   P. 

Booth  V.  Mill  Co.,  60  N.  Y.  487.  527 ;  Crescent  Manuf.  Co.  v.  INIanuf. 

7.  Sullivan     v.     McMillan,     37  Co.,  100  Mo.  325,  13  S.  W.  503. 
Fla.  134,   19  So.  340,  53  Am.  Rep.  1.  Watson  v.  Brick  Co.,  3  Wash. 
239.  283,  28  P.  527 ;  Wolf  v.  Studebaker, 

74Y 


§    687  TEKMmATION    OF    CONTRACTS.  Cll.    23 

of  a  contract  to  furnisli  a  cargo  for  a  vessel,  it  is  the  duty  of 
the  master  of  the  chartered  vessel,  on  the  failure  or  refusal  of 
the  charterer  to  furnish  the  cargo  as  agreed,  to  avail  himself  of 
all  ordinary  means  and  proper  opportunities  to  obtain  another 
cargo ;  and  if  he  neglects  to  perform  this  duty,  the  owners  can- 
not hold  the  charterer  liable  for  the  increased  damages  resulting 
from  such  neglect.^  So  where  the  landlord  failed  to  place  the 
tenant  in  possession  of  the  store  according  to  agreement,  it  is 
the  duty  of  the  tenant  to  mitigate  the  damages  by  accepting 
another  store  in  the  same  vicinity,  and  equally  suited  for  his 
purposes,  which  the  landlord  tendered.^ 

And  where  the  plaintiff,  owner  of  a  portable  sawmill,  agreed 
to  remove  it  to  the  farm  of  the  defendant  and  to  saw  a  stated 
number  of  logs,  to  be  furnished  by  the  defendant,  during  a  cer- 
tain season,  and  the  defendant,  after  furnishing  a  portion, 
broke  his  contract  by  refusing  to  furnish  more  of  such  logs,  but 
during  that  time  offered  the  plaintiff  other  employment  of  the 
same  kind,  so  that  his  mill  need  not  have  been  idle,  this  offer 
of  other  work  of  the  same  kind  should  go  in  mitigation  of 
damages.'* 

But  there  are  many  cases  where  no  legal  obligation  rests 
upon  the  plaintiff  to  enter  upon  the  performance  of  other  con- 
tracts for  the  benefit  of  the  defendant.^ 

Ordinarily  contracts  of  hire,  and  contract  for  the  perform- 
ance of  some  specified  undertaking,  cannot  be  governed  by  the 
same  rule.  In  one  case  the  party  can  earn  no  more  than  the 
wages,  and  if  he  gets  that  his  loss  will  be  nominal.    In  the  other 

65  Pa.  St.  459;  Crescent  Manuf.  Co.  stock,  21  Wend.    (N.  Y.),  457,  34 

V.  Manuf.  Co.,  100  Mo.  325,  13  S.  W.  Am.  Dec.  262  and  note. 

503;  Nelson  v.  Morse,  52  Wis.  240,  3.  Hodges  v.   Fries,   34   Fla.   63, 

255,  9  N.  1 ;  Cameron  v.  White,  74  15  So.  682. 

Wis.  425,  43  N.  W.  155,  5  L.  R.  A.  4.  Heavilon  v.   Kramer,   31   Ind. 

493;  Sullivan  v.  McMillan,  37  Fla.  241;  Frazier  v.  Clark,  88  Ky.  260, 

134,   19   So.   340,  53  Am.  St.  Eep.  10  S.  W.  806,  11  S.  W.  83. 

239.  5.  Sullivan  v.  McMillan,  37  Fla. 

2.  Murrell   v.    Whiting,   32   Ala.  134,   19   So.   340,  53  Am.  St.  Rep. 

54.      See,    also.    Shannon    v.    Com-  239;    Cameron  v.    White,   74    Wis. 

425,  43  N.  W.  155,  5  L.  R.  A.  493. 

748 


Cll.    23  BREACH    AND    DISCHARGE.  §§    687,  688 

case,  the  loss  of  the  party  is  the  loss  of  the  benefit  of  the  con- 
tract. The  damages  are  fixed  by  the  law  of  the  contract  the 
moment  it  is  broken,  and  cannot  be  altered  by  collateral  circum- 
stances independent  of  and  totally  disconnected  from  it,  and 
from  the  party  occasioning  it.  And  so  the  doctrine  that  one 
who  has  been  injured  by  the  breach  of  a  contract  must  do  all 
that  is  reasonably  within  his  power  to  mitigate  the  damages 
caused  thereby,  does  not  prevail  to  the  extent  that  one  who  is 
injured  by  a  violation  of  a  contract  to  do  a  specific  act  not  neces- 
sarily involving  personal  services,  must  seek  and  perform  other 
contracts  for  the  benefit  of  one  who,  by  breaking  faith  with 
him,  has  caused  the  injury.® 

§  688.  Part  performance When  a  party  injured  by  the 

stoppage  of  a  contract  by  the  other  party,  elects  to  rescind  it, 
then  he  cannot  recover  any  damages  for  a  breach  of  the  con- 
tract, either  for  outlay  or  for  loss  of  profits ;  he  recovers  the 
value  of  his  services  actually  performed  as  upon  a  quanhim 
meruit.  There  is  then  no  question  of  losses  or  profits.^  But 
where  he  elects  to  sue  for  damages  for  the  breach  of  the  con- 
tract, his  loss  will  consist  of  two  distinct  items  or  grounds  of 
damage:  1.  What  he  has  already  expended  towards  perform- 
ance, and  if  it  be  a  construction  contract,  less  the  value  of  mate- 
rials on  hand.  2.  The  profits  that  he  would  realize  by  per- 
forming the  whole  contract.  The  second  item,  profits,  cannot 
always  be  recovered.  They  may  be  too  remote  and  speculative 
in  their  character,  and  therefore  incapable  of  that  clear  and 
direct  proof  which  the  law  requires.  But  when  profits  are  the 
direct  and  immediate  fruits  of  the  contract,  they  are  a  part  and 
parcel  of  the  contract-  itself,  entering  into  and  constituting  a 
portion  of  its  very  elements ;   something  stipulated  for,  the  right 

6.  Wolf    V.    Studebaker,    65    Pa.  S.    W.    503;    Nelson    v.    Morse,    52 

St.    459 ;    Watson    v.    Brick   Co.,   3  Wis.     240,    9    N .    1 ;     Cameron    v. 

Wash.  283,  28  P.  527;   Sullivan  v.  White,  74  Wis.  425,  43  N.  W.  155, 

McMillan,  37  Fla.  134,  19  So.  340,  5  L.  R.  A.  493. 
53Ani.St.Rep.  239;  Crescent  Manuf.  1.  United   States  v.   Behan,   110 

Co.  V.  Manuf.  Co.,  100  Mo.  325,  13  U.  S.  338,  4  S.  Ct.  81, 

T49 


§§    688,  689  TEKMINATION    OF    CONTRACTS.  Clll.    23 

to  the  enjoyment  of  which  is  just  as  clear  and  plain  as  to  the 
fulfillment  of  any  other  stipulation.^ 

It  does  not  lie  in  the  mouth  of  the  party,  who  has  voluntarily 
and  wrongfully  put  an  end  to  the  contract,  to  say  that  the  party 
injured  has  not  been  damaged  at  least  to  the  amount  of  what 
he  'Jias  been  induced  fairly  and  in  good  faith  to  lay  out  and 
expend,  including  his  own  services,  after  making  allowance  for 
the  value  of  the  material  on  hand,  unless  he  can  show  that  the 
expenses  of  the  party  injured  has  been  extravagant  and  unnec- 
essary for  the  purpose  of  carrying  out  the  contract.^ 

§  689.  Appreciation  in  the  value  of  land.  —  Contracts  are 
often  made  in  the  purchase  of  land,  whereby  improvements  are 
to  be  made  that  shall  enhance  the  value  of  the  land.  In  case  of 
breach,  the  question  comes  up  as  to  the  damages  of  the  pur- 
chaser. Thus,  the  damages  for  breach  of  contract  to  build  a 
motor  railway  to  connect  with  the  business  portion  of  a  city, 
a  tract  of  land  which  one  of  the  parties  has  just  purchased  with 
a  view  of  platting  and  selling  it  for  suburban  residences,  is  the 
difference  between  the  value  of  the  land  on  the  day  the  road 
should  have  been  completed,  not  less  than  the  agreed  purchase 
price,  and  what  its  value  would  have  been  on  that  day  with  the 
road  completed  and  in  operation.'*  This  appreciation  in  the 
value  of  the  land,  if  any,  is  clearly  within  the  legal  if  not  the 
actual  contemplation  of  the  parties  at  the  time  the  contract  was 
made.  So  the  loss  of  its  increased  value  is  the  proximate  and 
natural  consequence  of  defendant's  breach,  and  is  a  fair  and 
close  approximation  of  the  actual  pecuniary  loss  sustained  by 
the  plaintiff  which  the  law  can  furnish.^ 

2.  Masterson  v.  Brooklyn,  7  Hill  Foard,  1  El.  &  El.  602;  Inchbald  v. 
(N.  Y.),  69,  42  Am.  Dec.  38  and        Coffee   Co.,    17    C.    B.,   N.    S.    733; 

note.  (4riffin  v.   Colver,   16  N.  Y.  489,  69 

3.  United  States  v.  Behan,  110  Am.  Dec.  718  and  note;  United 
U.  S.  338,  4  S.  Ct.  81;  States  v.  Speed,  8  Wall.  (U.  S.), 
Planche    v.    Colburn,    5   Car.  &  P.  77,  2  Ct.  CI.  429. 

58,  8  Bing.  14 ;  Goodman  v.  Pocock,  4.  Blagen  v.  Thompson,  23  Oreg. 

15  Ad.  &  El.  576;   Hadley  v.  Bax-  239,  31  P.  647,  18  L.  R.  A.  315. 
endale,    9    Exeh.    341;    Fletcher   v.  5.  Wilson  v.  Railway  Co.,  9  Ct. 

Tayleur,    17    C.    B.    21;     Smud    v.  App.    279;    Bronson   v.    Coffin,    108 

760 


Cll.    23  BREACH    AND    DISCHARGE.  §§    690,  691 

§  690.  Uncertain  and  contingent  damages.  —  Where  one 
party  violates  and  repudiates  his  contract,  the  damages  sus- 
tained by  the  injured  party  are  nearly  always  involved  in  some 
uncertainty  and  contingency.  They  may  be  so  uncertain,  con- 
tingent and  imaginary  as  to  be  incapable  of  adequate  proof, 
and  then  they  cannot  be  recovered  because  they  cannot  be 
proved.  But  when  it  is  certain  that  damages  have  been  caused 
by  a  breach  of  contract,  and  the  only  uncertainty  is  as  to  their 
amount,  there  is  no  valid  reason  for  refusing  on  account  of  such 
uncertainty  any  damages  whatever  for  the  breach.  A  person 
Aaolating  his  contract  should  not  escape  liability  because  the 
amount  of  the  damages  which  he  has  caused  is  uncertain.^ 

The  rule  that  damages  which  are  uncertain  or  contingent 
cannot  be  recovered,  onW  applies  to  such  damages  as  are  not  the 
certain  result  of  the  breach,  and  not  to  such  as  are  the  certain 
result  but  uncertain  in  amount.^  It  may  be  difficult  for  the 
plaintiff  to  prove  with  exactness  what  his  damages  are,  but  such 
uncertainty  does  not  prevent  him  from  recovering  such  damages 
as  he  may  be  able  to  prove.^ 

§  691.  Interest  upon  unliqidated  damages. — Formerly  the 
rule  was  not  to  allow  interest  upon  unliquidated  damages.  But 
now  the  rule  is  the  same  in  regard  to  liquidated  and  unliqui- 
dated damages.  So  whenever  a  judginent  liquidates  a  claim, 
and  fixes  it  as  of  a  prior  date,  interest  should  follow  from  the 
date." 

Interest  is  not  the  mere  incident  of  the  debt,  attaching  only 

Mass.     175,     11     Am.     Rep.     335;  2.  Blagen  v.  Thompson,  23  Oreg. 

Houston    Railroad    Co.    v.    Malloy.  939,  21  P.  641,  18  L.  R.  A.  315. 

64  Tex.   607;   Mobile  Railroad  Co.  3.  O'Brien  v.  Society,  117  N.  Y. 

V.  Gilmer,  85  Ala.  422,  5  So.   138;  ,310,   22   N.   E.   954;    Huse   Ice   Co. 

Louisville  Railroad  Co.  v.   Sumner,  v.   Heinze,   102  Mo.   245,   14  S.   W. 

106  Ind.   55,  5   N.  E.  404,  55  Am.  756. 

Rep.    119;    Watterson   v.    Railroad  4.  Sullivan  v.  McMillan,  37  Fla. 

Co.,  74  Pa.  St.  208.  134,  19  So.   340,  53  Am.   St.  Rep. 

1.  Wakeman  v.  Mfg.  Co.,  101  N.  239;    State   v.   Lott,   69   Ala.    147; 

Y.  209,  4  N.  E.  264,  54  Am.  Rep.  Van  Rensselaer  v.  Jewett,  2  N.  Y. 


676. 

751 


135,    51    Am.   Dec.    275    and   note; 


§§    691-693i  TERMINATION    OF    CONTBACTS.  Oh,.    23 

to  contracts,  express  or  implied,  for  the  payment  of  money,  bnt 
it  is  compensation  for  the  use  or  for  the  detention  of  money. 
Whenever  it  is  ascertained  that  at  a  particular  time  money 
ought  to  have  been  paid,  whether  in  satisfaction  of  a  debt,  or 
as  compensation  for  a  breach  of  duty,  or  for  a  failure  to  keep  a 
contract,  interest  attaches.^ 

Interest  is  the  compensation  for  the  use  or  detention  of 
money,  and  so  where  a  verdict  liquidates  a  claim  and  fixes  it  as 
at  a  prior  date,  interest  must  follow  from  that  date." 

§  692.  Breach  by  telegraph  company.  —  The  general  rule 
that  a  failure  of  a  telegraph  company  to  deliver  a  message 
whereby  the  sender  is  damaged,  is  limited  to  the  amount  paid 
for  transmission,  when  the  face  of  the  telegram  does  not  show 
its  importance.^  In  order  to  recover  more,  the  face  of  the  tele- 
gram ought  to  contain  something  to  put  the  company  on  its 
guard.^  Thus,  where  the  telegram  shows  on  its  face  that  it  is 
important,  the  company  is  liable  for  its  negligence  in  sending 
or  delivering  it,  and  if  the  party  is  injured  by  the  loss  in  the 
price  of  property,  the  measure  of  damages  is  the  difference 
between  the  price  received  and  the  actual  market  value  of  the 
property.^ 

§  693.  Breach  by  telegraph  company — Mental  suffering. — 
It  is  the  general  rule  that  a  mistake  in  sending  a  message 
whereby  mental  suffering  or  anguish  is  produced  is  no  cause 

Jacksonville,  etc.  R.  R.  Co.  v.  Mfg.  6.  State   v.    Lott,    69    Ala.    147; 

Co.,  27   Fla.   1,   157,  9  So.  661,  17  Sullivan  v.  McMillan,  37  Fla.  134, 

L.  R.  A.  33  and  note;   Sullivan  v.  19  So.  340,  53  Am.  St.  Rep.  239. 
McMillan,  37  Fla.  134,  19  So.  340,  1.  Ferguson  v.  Tel.  Co.,  178  Pa.  St. 

53  Am.   St.  Rep.  239;    Schmidt  v.  377,  35  A.  979,   35  L.  R.  A.   554, 

Railroad  Co.,  95  Ky.  289,  24  S.  W.  56  Am.  St.  Rep.  770 ;  Telegraph  Co. 

444,  26  S.  W.  547.  v.  Wenger,  55  Pa.  St.  263,  93  Am. 

5.  Brackett     v.      Edgerton,      14  Dec.  751. 
Minn.     174,     100    Am.     Dec.     211;  2.  Abeles  v.  Tel.  Co.,  37  Mo.  Aj)?. 

Boyd    V.    Gilchrist,     15   Ala.    849;  554. 

Whitworth      v.      Hart,      22      Ala.  3.  Reed  v.  Tel.  Co.,  135  Mn.  (i61, 

343;   Sellect  v.  French,  1  Conn.  32,  37   S.  W.  904,  34  L.  R.  A.  492,  58 

6  Am.  Dec.  185   and   note;  Adams  v.  Am.  St.  Rep.  609. 
Bank,  36  N.  Y.  255. 

752 


Ch.  23 


BREACH    AND    DISCHARGE. 


§    693 


for  damages  against  the  company.  Mental  suffering  alone, 
though  resulting  naturally  and  proximately  from  the  breach  of 
the  contract  by  the  telegraph  company,  is  not  a  proper  element 
of  damages.^ 

However,  other  decisions  hold  a  contrary  view,  and  so  where 
a  telegram  is  sent  telling  of  the  critical  sickness  or  death  of  a 
friend  or  relative,  and  asking  the  receiver  to  come,  and  the 
telegram  is  delayed  or  not  properly  transmitted,  so  that  the 
party  summoned  fails  to  comply  with  the  requisition,  and  is 
thereby  greatly  grieved  and  suffers  mentally,  the  telegraph  com- 
pany is  liable  in  damages  for  his  anguish  as  its  breach  is  the 
proximate  cause  of  such  suffering.^ 


1.  Francis  v.  Tel.  Co.,  58  Minn. 
252,  59  N.  W.  1078,  25  L.  R.  A. 
406,  49  Am.  St.  Rep.  507;  Morton 
V.  Tel.  Co.,  53  Ohio  St.  431,  41  N. 
E.  689,  32  L.  R.  A.  735,  53  Am.  St. 
Rep.  648;  Summerfield  v.  Tel.  Co., 
87  Wis.  1,  57  N.  W.  973,  41  Am. 
St.  Rep.  17;  Russell  v.  Tel.  Co.,  3 
Dak.  315,  19  N.  W.  408,  Butner  v. 
Tel.  Co.,  2  Okl.  234,  37  P.  1087; 
Chapman  v.  Tel.  Co.,  88  Ga.  763, 
15  S.  E.  901,  17  L.  R.  A.  430,  30 
Am.  St.  Rep.  183;  Western  Union 
Tel.  Co.  V.  Rogers,  68  Miss.  748,  9 
So.  823,  13  L.  R.  A.  859  and  note, 
24  Am.  St.  Rep.  300;  West  v.  Tel. 
Co.,  39  Kan.  93,  17  P.  807,  7  Am. 
St.  Rep.  530  and  note;  Interna- 
tional Tel.  Co.  V.  Sanders,  32  Fla. 
434,  14  So.  148,  21  L.  R.  A.  810; 
Newman  v.  Tel.  Co.  54  Mo.  App. 
434;  Chase  v  Tel.  Co.,  44  Fed.  Rep. 
554,  10  L.  R.  A.  464;  Crawson  v. 
Tel.  Co.,  47  Fed.  Rep.  544 ;  Western 
Union  Tel.  Co.  v.  Wood,  57  Fed. 
Rep.  471,  6  C.  C.  A.  432,  13  U. 
S.  App.  317,  21  L.  R.  A.  706; 
Gahan  v.  Tel.  Co.,  59  Fed.  Rep. 
433. 

2.  Relle  v.  Tel.  Co.,  55  Tex.  308, 
40  Am.   Rep.   805;    Western   Union 

753 


Tel.  Co.  V.  Berringer,  84  Tex.  38, 
19  S.  W.  336;  Western  Union  Tel. 
Co.  V.  Wisdom,  85  Tex.  261,  20  S. 
W.  56,  34  Am.  St.  Rep.  805;  West- 
ern Union  Tel.  Co.  v.  Carter,  85 
Tex.  580,  22  S.  W.  961,  34  Am.  St. 
Rep.  826;  Wadsworth  v.  Tel.  Co., 
86  Tenn.  695,  8  S.  W.  374,  6  Am. 
St.  Rep.  864 ;  Young  v.  '^'"..  Co.,  107 
N.  Car.  370,  11  S.  E.  1044,  9  L.  R. 
A.  669  and  note,  22  Am.  St.  Rep. 
883  and  note;  Thompson  v.  Tel.  Co., 
107  N.  Car.  294,  12  S.  E.  427; 
Western  Union  Tel.  Co.  v.  Cline, 
8  Ind.  App.  364,  35  N.  E.  564; 
Chapman  v.  Tel.  Co.,  90  Ky.  265, 
13  S.  W.  880;  Western  Union  Tel. 
Co.  V.  Henderson,  89  Ala.  510,  7  So. 
419,  18  Am.  St.  Rep.  148;  Beasley 
V.  Tel.  Co.,  39  Fed.  Rep.  181; 
Mentzer  v.  Tel.  Co.,  93  Iowa.  752, 
62  N.  W.  1,  28  L.  R.  A.  72,  57  Am. 
St.  Rep.  294;  Reese  v.  Tel.  Co.,  123 
Ind.  294,  24  N.  E.  163,  7  L.  R.  A. 
583  and  note;  Western  Union  Tel. 
Co.  V.  Finer,  1  Tex.  Civ.  App.  301, 
21  S.  W.  315;  Western  Union  Tel. 
Co.  V.  Evans,  1  Tex.  Civ.  App.  297, 
21  S.  W.  266;  Stuart  v.  Tel.  Co.,  66 
Tex.  580,  18  S.  W.  351,  59  Am.  Rep. 
623;    Western    Union    Tel.    Co.    v. 


§  693  TERMINATION  OF  CONTEACTS.  Clh.  23 

Therefore,  when  an  express  company  does  not  properly  de- 
liver medicine  to  a  party,  which  causes  physical  and  mental 
suffering  of  the  invalid,  this  is  a  proper  cause  of  recovery  of 
damages;^  but  the  mental  suffering  of  the  husband  of  the  in- 
valid is  too  remote  to  be  a  basis  for  the  recovery  of  damages.* 

The  variance  of  the  courts  cannot  be  reconciled.  The  class 
of  cases  where  mental  suffering  is  an  element  of  damages  are: 
1.  Mental  pain  arising  from  negligence  resulting  in  physical 
injury;  2,  breach  of  contract  of  marriage;  3,  willful  wrongs 
affecting  the  liberty,  character,  reputation,  personal  security  or 
domestic  relations  of  the  injured  party.  So,  if  mental  pain  is 
not  connected  with  any  physical  injury  or  willful  wrong,  the 
plaintiff  cannot  recover  for  it,  for  mental  suffering  as  an  inde- 
pendent cause  of  action,  is  too  remote,  speculative  and  uncer- 
tain. This  is  the  weight  of  authority  in  telegraph  cases.^  There 
is  no  way  to  measure  mental  anguish  where  a  suit  is  brought 
independently  of  physical  injuries ;  in  such  case  it  is  too  remote, 
speculative  and  uncertain.  Even  in  cases  of  libel,  malicious 
prosecution,  and  the  like,  in  which  punative  damages  may  be 
added  to  compensate  the  mental  anguish,  the  basis  of  damages 
for  mental  pain  is  the  enormity  of  the  willful  offense,  the  nature 
and  extent  of  which  are  established  by  evidence  open  to  both 
sides.® 

A  statute  rendering  telegraph  companies  liable  for  mental 
anguish  caused  by  failure  promptly  to  transmit  and  deliver  a 
message  is  constitutional  and  does  not  deprive  the  company  of 

Levy,    59    Tex.    563,    46   Am.    Rep.  8    Tex.    Civ.    App.    363,    27    S.    W. 

278;    Western    Union    Tel.    Co.    v.  830. 

Adams,    75   Tex.    531,   6   L.   R.   A.  5.  Connelly  v.  Tel.  Co.,  100  Va. 

844,  12  S.  W.  857,  16  Am.  St.  Rep.  51,  40  8.  E.  678,  56  L.  R.  A.  663 

920;    Western    Union    Tel.    Co.    v.  and  note   and   review,   93   Am.   St. 

Kirkpatrick,  76  Tex.  217,  13  S.  W.  Rep.  919. 

70,   18   Am.  St.   Rep.   37;   Western  6.  Western    Union    Tel.    Co.    v. 

Union  Tel.   Co.  v.   Rosentreter,   80  Ferguson,    157    Ind.    64,   60   N.    E. 

Tex.  401,  16  S.  W.  25.  674,  1080,  54  L.  R.  A.  846;   Ewing 

3.  Pacific  Express  Co.  v.  Black,  v.  Railroad  Co.,  147  Pa.  St.  40,  23 
8  Tex.  Civ.  App.  363,  27  S.  W.  A.  340,  14  L.  R.  A.  666  and  note, 
830.  30  Am.  St.  Rep.  709  and  note. 

4.  Pacific  Express  Co.  v.  Black, 

754 


oil.    23  BREACH    AND    DISCHAKQE.  §§    693,  694 

property  without  due  process  of  law,  or  deny  it  the  equal  pro- 
tection of  the  laws.^ 

§  694.  Contract  to  furnish  special  material. — A  contract  for 
the  furnishing  of  a  particular  article,  intended  for  a  special 
purpose  and  not  adapted  to  the  general  market,  is  not  within  the 
statute  of  frauds  as  the  contract  for  the  sale  of  goods.^  But  the 
cases  on  this  point  are  conflicting  and  cannot  be  reconciled. 

In  England  it  is  held  that  if  the  contract  be  such  that  the  sub- 
ject-matter of  the  contract  is  a  chattel  to  be  afterwards  delivered, 
then  the  cause  of  action  is,  goods  sold  and  delivered,  and  the 
seller  cannot  sue  for  work  and  labor.^ 

In  ISTew  York  an  agreement  for  the  sale  of  a  thing  not  in  ex- 
istence at  the  time,  but  which  the  contractor  is  to  manufacture 
or  to  put  into  condition  to  be  delivered,  is  not  a  contract  of  sale, 
and  so  not  within  the  statute  of  frauds.^ 

The  general  rule  is  that  a  contract  for  the  sale  of  articles  in 
existence,  or  for  such  as  the  vendor  in  the  ordinary  course  of 
his  business  manufactures  or  procures  for  the  general  market, 
whether  on  hand  at  the  time  or  not,  is  a  contract  for  the  sale  of 
goods,  to  which  the  statute  of  frauds  applies ;  but  if  the  goods 
are  to  be  manufactured  especially  for  the  purchaser,  and  upon 
his  special  order  and  not  for  the  general  market,  the  case  is  not 
within  the  statute,*  Therefore,  the  test  is,  not  the  nonexistence 
of  the  article  at  the  time  of  the  contract,  as  in  iSTew  York,  nor 
whether  the  contract  will  result  in  the  sale  of  a  chattel,  as  in 
England,  but  Avhether  the  goods  are  such  as  the  vendor,  in  the 
ordinary  course  of  his  business,  manufactures  or  procures  for 
the  general  market,  or  whether  they  are  manufactured  especially 

7.  Simmon  v.  Tel.  Co.,  63  S.  Car.  272.      See,    also,   Clay   v.   Yates,    1 

425,  41  S.  E.  521,  57  L.  R.  A.  607.  Hurl.  &  N.  73. 

1.  Forsyth  v.  Mann,  68  Vt,  116,  3.  Cook  v.  Willard,  65  N.  Y. 
34   A.   481,   32   L.   R.   A  788;   God-  352,  22  Am.  Rep.  619. 

dard  v.  Binney,  115  Mass.  450,  15  4.  Goddard  v.  Binney,  115  Mass. 

Am.   Rep.   112;   Mixer  v.  Howarth,  450,   15  Am.  Rep.   112;    Forsyth  v. 

21  Pick.    (Mass.)   205,  32  Am.  Dec.  Mann,  68  Vt.  116,  34  A.  481,  32  L. 

256.  R.    A.    788.      See,    also,    Pitkin    v. 

2.  Lee   v.    Griffin,    1    Best   &    S.  Xoyes.  48  N.  H.  294,  2  Am.  Rep. 

218;  Cason  v.  Cheeley,  6  Ga.  554. 

Y55 


§  694  TERMINATION  OF  CONTEACTS.  Oh,  23 

for  the  vendee  and  on  his  special  order,  and  not  for  the  general 
market,  and  for  which  they  are  neither  intended  nor  adapted. 

Under  this  general  rule  the  personal  services  of  the  plaintiff 
in  procuring  material  and  superintending  the  construction  of 
the  special  article  may  be  included  as  part  of  the  damages  to  be 
included  in  a  breach  of  the  contract,^  which  is  not  void  as  a  sale 
under  the  statute  of  frauds. 

It  is  not  necessary  that  personal  skill  and  labor  should  be 
stipulated  for  in  order  to  make  a  contract  one  for  manufacture. 
It  is  sufficient  if  the  work  and  labor  requisite  to  such  a  contract 
are  to  be  performed  by  the  contractor  or  by  his  procurement  and 
at  his  expense.  The  latter  would  be  work  and  labor  done  by 
him,  in  the  eye  of  the  law,  and  could  be  declared  for  as  such.' 

Whether  such  parol  contracts  are  within  the  statute  of  frauds 
is  of  great  importance  in  those  States  where  the  seventeenth  sec- 
tion of  that  act  is  in  operation.  Thus  the  plaintiff  agreed  to 
build  a  buggy  for  the  defendant,  and  to  deliver  it  at  a  certain 
date.  The  defendant  gave  directions  as  to  the  style  and  finish, 
and  it  was  built  accordingly  and  marked  with  his  monogram. 
It  was  destroyed  by  fire  before  delivery,  and  the  plaintiff  sued 
for  the  price.  The  court  held  that  the  carriage  was  not  only 
built  for  the  defendant,  but  in  conformity,  in  some  respects, 
with  his  directions,  and  at  his  request  was  marked  with  his  in- 
itials, and  that  it  was  neither  intended  nor  adapted  for  the  gen- 
eral market,  and  so  the  statute  did  not  apply  and  the  defend- 
ant must  pay  for  it.^  So  parties  contracted  to  furnish  a 
monument  within  a  certain  time.  Upon  learning  that  such 
parties  would  not  finish  it,  the  plaintiff  at  once  procured  stock 
and  had  the  monument  cut.  Owing  to  the  circumstances  that 
the  work  must  be  done  in  the  winter,  the  monument  cost  more 
than  it  otherwise  would.  Under  such  circumstances  the  plain- 
tiff could  recover  the  difference  between  the  contract  price  and 

5.  Forsyth  v.  Mann,  68  Vt.   116,  68  Vt.  116,  34  A.  481,  32  L.  R.  A. 
34  A.  481,  32  L.  R.  A.  788.  788. 

6.  Bird  v.  Muhlinbrink,   1   Rich.  7.  Goddard  v.  Binney,  115  Mass. 
L.   (S.  Car.)   119;  Forsyth  v.  Mann,  450,  15  Am.  Rep.  112. 

756 


Cli.    23  BREACH    AND    DISCHARGE.  §§    694,  695 

the  actual  cost,  and  for  his  personal  services  in  procuring  stock 
and  superintending  the  construction  as  part  of  the  damages.* 
So  damages  may  be  recovered  for  the  deprivation  of  intel- 
lectual enjoyment  and  for  mental  suffering  resulting  from  the 
breach  of  the  contract  of  a  fashionable  milliner  to  furnish  the 
dresses  for  the  trousseau  of  a  bride  of  wealth  and  high  social 
standing;  because  it  must  be  taken  into  consideration  not  only 
the  disappointment  of  the  bride  in  not  having  the  dresses  in 
time  for  the  wedding,  and  her  mortification  in  going  to  her 
husband  unprovided  with  a  suitable  trousseau,  but  also  the  fact 
that  entertainments  had  been  planned  in  her  honor  on  her  wed- 
ding tour  and  at  her  arrival  at  the  home  of  her  husband,  which 
entertainments  she  had  to  forego  for  want  of  dresses.® 

§  695.  Profits  as  damages — General  rule. — It  is  held  both  in 
England  and  in  the  United  States  that  the  general  rule  is,  sub- 
ject to  certain  well-established  qualifications,  that  anticipated 
profits  prevented  by  the  breach  of  a  contract  are  not  recoverable 
in  the  way  of  damages  for  such  breach ;  but  in  the  application 
of  tliis  principle  the  same  uniformity  in  the  decisions  do  not 
exist.  In  some  cases  of  almost  exact  analogy,  in  the  facts,  the 
adjudications  in  the  different  States  are  directly  opposite.  The 
grounds  upon  which  the  general  rule  of  excluding  profits,  in 
estimating  damages  are :  1.  In  the  greater  number  of  cases  such 
expected  profits  are  too  dependent  upon  numerous,  uncertain 
and  changing  contingencies  to  constitute  a  definite  and  trust- 
worthy measure  of  actual  damages.  2.  Such  loss  of  profits  is 
ordinarily  remote  and  not,  as  a  matter  of  course,  the  direct  and 
immediate  result  of  the  nonfulfillment  of  the  contract.  3.  Most 
frequently  the  engagement  to  pay  such  loss  of  profits,  in  case 
of  default  in  the  performance,  is  not  a  part  of  the  contract 
itself,  nor  can  it  be  implied  from  its  nature  and  terms. ^ 

8.  Forsyth  v.  Mann,  68  Vt.  116,  States,  19  Wall.  (U.  S.)  37;  Smith 
34  A.  481,  32  L.  R.  A.  784.  v.  Conley,  1  How.   (U.  S.)   28;  The 

9.  Lewis  V.  Holmes,  109  La.  Amiable  Nancy,  3  Wheat.  (U.  S.) 
Ann.  1030,  34  So.  66.  546;    The   Anna   Maria,    2    Wheat. 

1.  Parish  v.  United  States,  100  (U.  S.)  327;  The  Schooner  Lively, 
U.     S.     500;     Buckley     v.     United        1  Gall.  C.  C.  315. 

757 


§  696  TBRMINATION  OF  CONTEACTS.  Gib.  23 

§  6g6.  Profits  which  would  have  been  realized. — The  profits 
which  would  have  been  realized  had  the  contract  been  per- 
formed, and  which  have  been  prevented  by  its  breach,  are  in- 
cluded in  the  damages  to  be  recovered  in  every  case  where  such 
profits  are  not  open  to  the  objection  of  uncertainty  or  of  re- 
moteness, or  where  from  the  express  or  implied  terms  of  the 
contract  itself,  or  the  special  circumstances  under  which  it  was 
made,  it  may  reasonably  be  presumed  that  they  were  within  the 
intent  and  mutual  understanding  of  both  parties  at  the  time  it 
was  entered  into.^ 

Where  a  business  is  established  so  as  to  furnish  a  basis  for 
the  ascertaining  of  damages,  damages  are  recoverable  for  loss  of 
profits  when  the  party  has  been  prevented  from  carrying  on  his 
business,  but  not  where  the  business  has  not  been  established.^ 
So  damages  from  diminution  of  yield  because  of  breach  of  con- 
tract to  furnish  fertilizers  to  assist  in  making  a  crop,  is  not  too 
remote  to  sustain  an  action  for  the  breach.^ 

In  regard  to  sales,  the  general  rule  is  that  the  purchaser  is 
entitled  to  recover  the  difference  between  the  contract  price  and 
the  value  of  the  article  in  the  market  at  the  time  and  place  of 
delivery.'*  The  damages  where  the  vendor  knows  that  the  pur- 
chaser has  an  existing  contract  for  a  re-sale  at  an  advanced 
price,  and  that  the  purchaser  is  made  to  fulfill  such  contract, 
and  the  vendor  agrees  to  supply  the  article  to  enable  him  to 
fulfill  the  same,  because  the  profits  which  would  accrue  to  the 
purchaser  upon  fulfilling  the  contract  of  re-sale,  may  justly  be 

1.  United   States   v.    Behan,    110  67  N.  W.  976;  Lanahan  v.  Heaver, 

U.  S.  338;  Western  Union  Tel.  Co.  79  Md.  413,  29  A.  1036,  19  Am.  St. 

V.  Hall,  124  U.  S.  444,  8  S.  Ct.  577;  Rep.  180. 

Philadelphia,  etc.  R.  R.  Co.  v.  How-  2.  Chicago,  etc.  R.  R.  Co.  v.  How- 
ard, 13  How.    (U.  S.)    307;   Arkan-  ison,  80  111.  215. 
eas,   etc.   Town   Co.  v.   Lincoln,   56  3.  Herring  v.  Armwood,   130  N. 
Kan.  145,  42  P.  706;   Blymyer  Ice  Car.  177,  41  S.  E.  96,  57  L.  R.  A. 
Maeh.  Co.  v.  McDonald,  48  La.  Ann.  958. 

439,  19  So.  459;  Krearher  v.  Irwin,  4.  Messmore  v.  Lead  Co.,  40  N". 

46  Neb.  827,  65   N.  W.   885;    Bar-  Y.  427;  Carpenter  v.  Bank,  119  111. 

rett  V.  Veneer  Works,  110  Mich.  6,  352,  10  N.  E.  18. 


758 


Cll.    23  BREACH    AND    DISCHAEGE.  §§    69G,  697 

said  to  have  entered  into  the  contemplation  of  the  parties  in 
making  the  contract.^ 

§  697.  Contingent  profits  not  allowed. — Calculations  as  to 
prospective  profits  in  other  enterprises  which  the  party  would 
have  engaged  in,  had  his  contract  with  defendant  been  fulfilled, 
are  too  remote  to  form  the  basis  of  damages  occasioned  by  the 
breach  of  such  contract.^  Damages  which  are  contingent  can- 
not be  allowed.^  Thus,  the  plaintiff,  who  was  an  owner  of  a 
mill,  sent  a  broken  iron  shaft  to  the  office  of  the  defendants, 
who  were  common  carriers,  to  be  conveyed  by  them  to  a  manu- 
facturer of  such  machinery,  the  broken  shaft  to  serve  as  a  model 
or  pattern  for  the  new  one.  The  clerk  of  the  defendants  in  their 
office  was  told  that  the  mill  was  stopped,  that  the  shaft  must  be 
delivered  immediately  and  that  a  special  entry  should  be  made, 
if  necessary  to  hasten  its  delivery.  The  delivery  of  the  broken 
shaft  to  the  manufacturer  was  delayed  an  unreasonable  length 
of  time,  in  consequence  of  which  the  plaintiff  did  not  receive 
the  new  shaft  for  some  days  after  the  time  it  ought  to  have  been 
received,  and  he  was,  therefore,  unable  to  work  his  mill  from 
want  of  the  new  shaft,  thereby  incurring  loss  of  profits.  It 
was  held  that  such  loss  of  profits  could  not  be  recovered  as  dam- 
ages in  an  action  against  the  defendants  as  common  carriers.' 

So  in  an  action  to  recover  the  contract  price  for  putting  up 
mill  machinery,  anticipated  profits  of  the  defendant  resulting 
from  grinding  wheat  into  flour  and  selling  the  same,  had  the 

5.  Hadley  v.  Baxendale,  9  Exch.  St.  Rep.  326;  Jones  v.  Call,  96  N. 

341;    Cockburn  v.  Lumber  Co.,  54  Car.  337,  2  S.  E.  647,  60  Am.  Rep. 

Wig.   619,    12   N.   49;    Wetmore   v.  416;  New  York,  etc.  Mining  Co.  y. 

Pattison,   45   Mich.   430,   8   N.   67;  Eraser,  130  U.  S.  611,  9  S.  Ct.  665; 

Rahm  v.  Deig,  121  Ind.  283,  23  N.  Howard  v.  Manuf.   Co.,   139  U.   S. 

E.  141.  199,  11  S.  Ct.  500;  Pennypacker  v. 

1.  Fox  V.  Harding,  7  Cush.  Jones,  106  Pa.  St.  237;  Allis  v. 
(Mass.)  516;  Consumers'  Pure  Ice  McLean,  48  Mich.  428,  12  N.  640; 
Co.  V.  Jenkins,  58  111.  App.  519.  Dixon-Wood  Co.  v.  Glass  Co.,   169 

2.  Paola   Gas   Co.   v.   Glass   Co.,  Pa.  St.  167,  32  A.  432. 

56  Kan.  614,  44  P.  621,  54  Am.  St.  3.  Hadley  v.  Baxendale,  9  Exch. 

Rep.    598;    Brownell    v.    Chapman,        341,  354,  356. 
84  Iowa,  504,  51  N.  W.  249,  35  Am. 

759 


§  697  TERMINATION  OF  CONTRACTS.  Cll.  23 

mill  been  completed  at  the  date  specified  in  the  contract,  cannot 
be  recovered  by  way  of  damages  for  delay  in  putting  it  up.* 
Likewise  the  plaintiff,  who  owned  and  operated  a  flour  mill, 
entered  into  a  contract  with  the  defendants,  by  certain  of  the 
terms  of  which  the  defendants  were  to  place  in  his  mill,  within 
a  specified  time,  machinery  of  a  certain  capacity,  to  make  flour 
of  a  high  grade.  The  machines  when  furnished  were  found 
not  to  make  a  high  grade  of  flour,  and  to  be  incapable  of  pro- 
ducing the  stipulated  number  of  barrels  per  day.  In  an  action 
for  damages  by  the  plaintiff  for  breach  of  the  contract,  it  was 
held  that  the  loss  of  possible  profits,  which  might  have  been 
made  if  the  mill  had  run  properly,  was  not  a  proper  subject  of 
damages,  for  the  reason  that  the  damages  were  too  remote  and 
speculative.^  So  in  an  action  for  the  seizure  and  detention  of  a 
steamboat  by  an  attachment  which  was  discharged,  it  was  held 
that  measure  of  damages  was  only  the  actual  damage  sustained 
by  the  seizure.^  And  in  an  action  for  the  price  of  a  steamboat 
which  was  delayed  by  imperfect  construction,  the  profits  which 
might  have  been  made  if  perfectly  constructed  are  too  remote.'^ 
And  in  all  cases  where  the  profits  are  contingent,  uncertain,  and 
speculative,  they  cannot  be  estimated  upon  any  certain  basis, 
and  are  not  therefore  an  element  of  damages.* 

4.  Howard  v.  Manuf.  Co.,  139  ham,  14  Neb.  369,  15  N.  704,  45 
U.  S.  199,  11  S.  Ct.  560.  Am.     Rep.     121;     Willingham     v. 

5.  Pennypacker  v.  Jones,  106  Pa.  Hoovin,  74  Ga.  233,  58  Am.  Rep. 
St.  237,  242.  435;    Georgia   Railroad  v.   Hayden, 

6.  Callaway  Mining,  etc.  Co.  v.  71  Ga.  518;  Freeman  v.  Clute,  3 
Clark,  32  Mo.  305.  Barb.    (N.  Y.)   424;   Griffin  v.  Col- 

7.  Blanchard  v.  Ely,  21  Wend.  ver,  16  N.  Y.  489,  69  Am.  Dec.  718 
(N.  Y.)  342,  34  Am.  Dee.  250  and  and  note;  Wakeman  v.  Manuf.  Co., 
note.  101  N.  Y.  205,  4  N.  E.  264,  54  Am. 

8.  Olmstead  V.  Burke,  25  111.  86;  Rep.  676;  Brown  v.  Smith,  12 
Winne  v.  Kelley,  34  Iowa,  339;  Cush.  (Mass.)  366;  Boyd  v.  Brown, 
Howe  Mach.  Co.  V.  Bryson,  44  Iowa,  17  Pick.  (Mass.)  453;  Smith  v. 
159,  24  Am.  Rep.  735;  Housten,  Conley,  1  How.  (U.  S.)  28;  How- 
etc.  R.  R.  Co.  V.  Hill,  63  Tex.  381,  ard  v.  Manuf.  Co.,  139  U.  S.  199,  11 
57  Am.  Rep.  642;   Bridges  v.  Lan-  S.  Ct.  500. 


Y60 


Ct.    23  BREACH    AND    DISCHARGE.  §    698 

§  698.  Resale  by  purchaser. — The  general  rule  for  awarding 
damages  for  a  breach  of  a  contract  for  the  sale  and  delivery  of 
personal  property  is  the  difference  between  the  contract  price 
and  the  market  value  at  the  time  and  place  of  delivery  as  fixed 
by  the  contract.^  And  in  an  action  for  breach  of  contract  of 
sale  by  the  vendor,  the  vendee  cannot  recover  for  profits  which 
he  might  have  received  by  sale  of  such  goods  under  a  contract 
made  after  the  contract  of  purchase.^ 

But  the  general  rule  has  exceptions.  Thus,  where  the  vendor 
knows  that  the  purchaser  has  an  existing  contract  for  the  resale 
at  an  advanced  price,  and  that  the  purchase  is  made  to  fulfill 
such  contract,  and  the  vendor  agrees  to  supply  the  article  to 
enable  him  to  fulfill  the  same,  those  profits  which  would  accrue 
to  the  purchaser  upon  fulfilling  the  contract  of  resale,  may  justly 
be  said  to  have  entered  into  the  contemplation  of  the  parties  in 
making  the  contract,  for  which  the  vendor  is  liable  upon  breach 
of  the  sale.^ 

But  profits  of  the  resale  by  the  vendor  are  not  recoverable, 
unless  the  original  vendor  contracts  with  reference  to  the  resale.* 
And  the  vendor  is  bound,  whether  the  price  of  the  resale  was 
communicated  to  him  or  not,  unless  the  price  was  such  at  to 
yield  an  extraordinary  and  unusual  profit,  which  could  not  be 
reasonably  presumed  to  have  been  in  contemplation  by  him  at 
the  time  he  made  his  contract;  in  such  case  he  would  not  be 
bound  beyond  such  sum  as  would  yield  a  reasonable  and  fair 

1.  Merritt  v.  Wittich,  20  Fla.  Y.  487;  Cockburn  v.  Ashland  L. 
27;  Robinson  v.  Hyer,  35  Fla.  544,        Co.,   54   Wis.   619,    12   N.    W.    49; 

17  So.  745;  Davis  v.  Furniture  Co.,       Guetzkow  v.  Andrews,  92  Wis.  214, 
41  W.  Va.  717,  24  S.  E.  630.  66  N.  W.  119,  52  L.  R.  A.  209  and 

2.  Penu  V.  Smith,   104  Ala.  445,        note,  53  Am.  St.  Rep.  909;   Robin- 

18  So.  38.  son   v.   Hyer,   35    Fla.   544,    17    So. 

3.  Orr  V.  Commission  Co.,  97  Ga.        745. 

241,  22  S.  E.  937;  Sanderlin  v.  Wil-  4.  Orr  v.  Commission  Co.,  97  Ga. 

lis,    94    Ga.    171,    21    S.    E.    291;  241,  22  S.  E.  937.     See,   also,  El- 

Borries  v.  Hutchinson,  18  C.  B.,  N.  binger  Actien-Gesellschaft  v.  Arm- 

S.  445;   Messmore  v.  Lead  Co..  40  strong,  L.  R.  9  Q.  B.  473;  Grebert- 

N.  Y.  422;  Booth  v.  Mill  Co.,  60  N.  Borgnis  v.  Nugent,  15  Q.  B.  Div.  85. 


Y61 


§§  698,6991 


TEBMIIirATION    OF    CONTEACTS. 


OL    25 


profit  to  his  vendee,  unless  he  was  informed  of  the  price  to  be 
received  by  his  vendee.^ 


§  699.  Building  contracts. — Slight  defects  caused  by  inad- 
vertence or  unintentional  omissions  are  not  necessarily  in  the  way 
of  recovery  of  the  contract  price,  less  the  amount  by  way  of  dam- 
ages requisite  to  indemnify  the  owner  for  all  expense  of  con- 
forming the  work  to  that  for  which  he  contracted/  If  the  con- 
tract has  been  substantially  performed  in  good  faith,  the  price 
can  be  recovered  less  the  necessary  expense  of  conforming  the 
work  to  the  requirements  of  the  contract.^ 

And  where  the  plaintiff  was  prevented  to  complete  the 
work  by  the  defendant's  default,  the  measure  of  damages  is 
the  difference  in  the  price  to  be  paid  and  the  amount  it  would 
cost  plaintiff  to  complete  the  contract.^ 


5.  Guetzkow  v.  Andrews,  92  Wis. 
214,  66  N.  W.  119,  52  L.  R.  A.  209 
and  note,  53  Am.  St.  Rep.  909. 

1.  Crouch  V.  Gutman,  134  N.  Y. 
45,  31  N.  E.  271,  30  Am.  St.  Rep. 
608  and  note;  Linch  v.  Lumber  Co., 
80  Tex.  23,  15  S.  W.  208;  Aetna 
Iron  Works  v.  Kossuth  Co.,  79 
Iowa,  40,  44  N.  W.  215;  Leeds  v. 
Little,  42  Minn.  414,  44  N.  W.  309; 
Moore  v.  Carter,  146  Pa.  St.  492, 
23  A.  243;    Gallaher  v.  Sharpless, 


134  Pa.  St.  134,  19  A.  491;  Fla- 
herty V.  Minor,  123  N.  Y.  382,  25 
N.  E.  418. 

2.  Keeler  v.  Herr,  157  III.  57,  41 
N.  E.  750.  See,  also,  Chamberlain 
V.  Hibbard,  26  Oreg.  42^8,  38  P. 
437;  Sherman  v.  Connor,  88  Tex. 
35,  29  S.  W.  1053. 

3.  Tennessee,  etc.  R.  R.  Co.  v. 
Danforth,  112  Ala.  80,  20  So.  502. 
See,  also,  Brandt  v.  Schurchmann, 
60  Mo.  App.  70. 


'62 


Cll.    23  BREACH    AND    BISCHARGE.  §    700 


ARTICLE  II. 
CoMPOsiTioiir  WITH  Creditors. 

Section  700.  Composition  Agreement. 

701.  Preference  to  Separate  Creditor. 

702.  Composition  with  Part  of  the  Creditors. 

703.  Adjustment  and  Compromise. 

704.  Conditional  Sales — Validity  of  in  Bankruptcy. 

§  700.  Composition  agreement.  —  A  composition  agreement 
is  one  made  witli  a  sufficient  consideration,  between  an  insol- 
vent or  embarrassed  debtor  and  his  creditors,  whereby  the 
latter,  for  the  sake  of  immediate  payment,  agree  to  accept  a 
dividend  less  than  the  whole  amount  of  their  claims,  to  be  dis- 
tributed pro  rata  in  discharge  and  satisfaction  of  the  whole.* 
It  is  an  exception  to  the  rule  that  payment  of  part  of  a  liqui- 
dated and  due  debt  is  not  satisfaction  for  the  whole.  It  is  ex- 
cepted because  there  is  a  consideration  to  each  creditor  for  his 
agreement  to  accept  less  than  his  claim  in  full  payment.  It  is 
an  greement,  not  merely  between  the  debtor  and  each  creditor, 
but  also  between  the  several  creditors.  The  engagement  of 
each  creditor  to  accept  less  than  his  claim  is  the  consideration 
to  each  of  the  others  for  his  like  engagement.  Each  creditor 
signing  has  a  right  to  assume  that  each  one  is  to  receive  the 
benefit  stipulated  in  the  agreement;  that  it  truly  sets  forth  the 
terms  of  composition  as  to  all  the  parties.^  And  such  a  compo- 
sition may  be  binding,  even  though  resting  in  parol.^ 

-| 

1.  Continental  Nat.  Bank  v.  Me-  Am.  Rep.  781;  Continental  Nat. 
Geoch,  92  Wis.  286,  66  N.  W.  606.        Bank  v.  McGeoch,  92  Wis.  286,  66 

2.  Newell   v.   Higgins,   55   Minn.        N.  W.  606. 

82,  56  N.  W.  577;  Noyes  v.  Chap-  3.  Mellen  v.  Goldsmith,  47  Wis. 

man   Drake  Co.,   60   Minn.   88,   61  573,  3   N.   592,   32  Am.  Rep.   781; 

N.  W.  901;  Lathrop  v.  Knapp,  27  Good  v.  Cheesman,  2  Barn.  &  Ad. 

Wis.  225;   Davenport  v.  Cong.  So-  328;   Boyd  v.  Hind,   1  Hurl.  &  N. 

ciety,  33  Wis.  387 ;  Mellen  v.  Gold-  947. 
smith,  47   Wis.  573,  3   N.  592,  32 


763 


§  YOl  TERMINATION  OF  CONTRACTS.  Cll.  23 

§  701.  Preference  to  separate  creditor. — It  is  generally  held 
that  any  separate  agreement  by  which  one  of  the  creditors 
secures  to  himself  benefits  not  conferred  on  the  others,  and 
which  agreement  is  not  disclosed  to  them  before  they  sign  the 
composition,  is  a  fraud  upon  them.  Such  separate  agreement 
and  composition  agreement  also  are  void  as  to  all  parties.^ 

But  another  line  of  decisions  holds  that  if  a  creditor  signs  a 
composition  agreement  under  a  secret  agreement  with  the 
debtor,  giving  him  a  preference  or  some  undue  advantage  over 
other  creditors,  this  does  not,  as  to  such  creditors,  nullify  the 
composition  agreement.  The  two  agreements  are  to  be  consid- 
eretd  as  separate  and  independent,  and  while  the  secret  agree- 
ment is  fraudulent  and  void,  the  composition  agreement  re- 
mains valid  and  enforceable.^ 

In  England  and  in  some  of  the  States  it  is  held  that  the  fraud 
in  the  secret  agreement  with  the  creditor  so  vitiates  the  whole 
transaction  of  composition,  as  to  disable  him  from  recovering 
even  the  amount  of  the  composition,  and  that  the  other  creditors 
may  declare  the  composition  void.^ 

But  another  rule  is  that  the  secret  and  fraudulent  agreement, 
only,  is  illegal  and  is  inoperative  to  confer  any  rights  or  advan- 
tage upon  the  creditor.  Such  cases  fall  within  the  rule,  which 
permits  a  severasice  of  the  illegal  from  the  legal  part  of  the 
covenant,  and  so  nothing  but  the  fraudulent  contract  is  void, 
the  composition  agreement  being  valid.* 

1.  Newell  V.  Higgins,  55  Minn.  392;  Cleveland  v.  Richardson,  132 
82,  85,  56  N.  W.  577;  Lee  v.  Sellers,        U.  S.  318,  10  S.  Ct.  100. 

81  Pa.  St.  473;  Patterson  V.  Boehm,  3.  Howden   v.    Haigh,    11    Ad.   & 

4  Pa.  St.  507;  Lawrence  v.  Clark,  El.    1033;    Mallalieu    v.    Hodgson, 

36    N.    Y.    128;    Fay   v.    Fay,    121  16  Ad.  &  EL,  N.  S.  689;  Knight  v. 

Mass.    561;    Harvey   v.    Hunt,    119  Hunt,    5    Bing.    432;    Leicester    v. 

Mass.    279;    Atkinson   v.   Denby,    7  Rose,  4  East,  372;  Leake  on  Cont. 

Hurl.  &  N.   933;    Continental   Nat.  768;    Chitty  on   Cont.   694;   Wald'a 

Bank  v.  McGeoch,  92  Wis.  286,  66  Pollock    on    Cont.    239.      Compare 

N.  W.  606.  Davison    v.    McGregor,    8    Mees.    & 

2.  Hanover  Nat.  Bank  v.  Blake,  Wei.  763. 

142  N.  Y.  404,  37  N.  E.  519,  27  L.  4.  Hanover  Nat.  Bank  v.  Blake, 

R.  A.  33  and  note,  40  Am.  St.  Rep.        142  N.  Y.  404,  32  N.  E.  519,  27  L. 
607 ;   Way  v.  Langley,  15  Ohio  St.        R.  A.  33  and  note,  40  Am.  St.  Rep. 

764 


Cll.    23  BKJEACH    AND    DISCHARQE.  §§    Y01-T03 

Under  the  Englisli  doctrine  where  any  secret  preference  has 
been  given  either  by  the  debtor  or  by  any  person  for  him,  either 
with  or  without  his  direction,  if  he  ratifies  it  by  claiming  the 
benefit,  the  composition  agreement  itself  also  becomes  void,  and 
the  creditors  can  then,  without  returning  or  offering  to  return 
the  amount  received,  bring  suit  for  the  amount  remaining 
unpaid.^ 

§  702.  Composition  with  part  of  the  creditors. — ^While  it  is 

true  that  a  debtor  cannot,  for  want  of  consideration,  make  a 
binding  composition  with  a  single  creditor  of  an  undisputed 
and  liquidated  debt,  yet  it  does  not  follow  that  such  contract 
must  be  made  with  all  his  creditors.  So  any  agreement  entered 
into  between  a  debtor  and  two  or  more  of  his  creditors,  or  all  of 
them,  to  take  a  composition  for  their  debts,  is  binding  upon 
those  who  make  the  agreement.® 

§  703.  Adjustment  and  compromise.  —  An  adjustment  and 
compromise  of  a  bona  fide  controversy  as  to  matters  which  are 
fairly  the  subject  of  debate  between  the  parties  at  the  time  of 
such  compromise,  each  party  acting  with  full  knowledge  of  the 
facts,  and  no  element  of  fraud  or  of  serious  or  injurious  mis- 
take intervening,  is  valid.^ 

When  a  compromise  has  been  fairly  effected,  its  validity  will 
be  independent  of  the  merits  of  the  controversy  on  which  it  is 
founded,  and  it  cannot  be  reopened  for  the  purpose  or  with  the 
effect  of  reviving  the  dispute  which  it  was  meant  to  determine.^ 

607.     See,  also,  Pickering  v.  Rail-  Wis.  351,  47  N.  W.  618;  Hefter  v. 

way  Co.,  L.  R.  3  C.  P.  235,  250;  Calm,  73  III.  296;   Cobb  v.  Tirren, 

United   States  v.   Bradley,    10   Pet.  137  Mass.  143. 

(U.   S.)    343,  360;   Mallan  v.  May,  6.  Continental  Nat.  Bank  v.  Mc- 

11  Mees.  &  Wei.  653.  Geoch,  92  Wis.  286,  66  N.  W.  606; 

5.  Ex  parte  Milner,  15  Q.  B.  Div.  Bishop  on  Insol.  Debtors,  484. 

606;   Bank  v.  Hoeber,  11  Mo.  App.  1.  Van  Tratt  v.   Wiese,  36   Wis. 

475,  88  Mo.   37,   57   Am.   Rep.   359  439;  Woodruff  v.  Marshall,  72  Wis. 

and  note;   Kullman  v.  Greenebaum,  132,    39    N.    W.    376;    Hennessy   v. 

92  Cal.  403,  28  P.  674,  27  Am.  St.  Bacon,  137  U.  S.  78,  11  S.  Ct.  17. 

Rep.   150;    Laird   v.   Campbell,    100  2.  Kerchival    v.    Doty,    31    Wis. 

Pa.  St.  159;  Mygatt  v.  Tarbell,  78  476,  487. 

765 


§§  Y03,  Y04       TERMINATION  OF  CONTRACTS.        Gh.  23 

A  compromise  of  a  doubtful  claim  is  a  good  consideration 
for  a  promise  to  pay  money,  and  it  is  no  answer  to  an  action 
brought  upon  such  promise  to  show  that  the  claim  was  invalid.' 

So  the  fact  that  the  validity  of  a  claim  is  questionable,  as 
where  money  is  borrowed  to  be  used  in  an  illegal  attempt  to 
corner  the  market  of  a  certain  product,  constitutes  a  sufficient 
consideration  for  an  accord  and  satisfaction  or  settlement  by 
which  the  creditors  receive  less  than  the  full  amount  of  such 
claims.* 

§  704.  Conditional  sales — Validity  of  in  bankruptcy. — The 

bankruptcy  act  does  not  vest  the  trustee  with  any  better  right 
or  title  in  the  bankrupt  or  in  his  creditors  at  the  time  the  trus- 
tee's title  accrued.  Under  the  act  a  lien,  good  at  the  time  of 
going  into  bankruptcy  as  against  the  debtor  and  as  against  all 
of  his  creditors,  shall  remain  undisturbed.  Therefore,  where 
a  conditional  sale  is  valid,  if  the  vendee  goes  into  bankruptcy,^ 
this  does  not  divest  the  title  as  to  the  vendor.  In  such  case  the 
trustee  is  not  a  subsequent  purchaser  in  good  faith.® 

But  in  some  States  a  conditional  sale  not  recorded  is  void 
as  against  creditors.  In  such  case  undoubtedly  the  trustee  will 
take  a  valid  title  as  against  the  vendor  and  all  other  parties. 
The  following  language  of  the  Federal  court  is  significant: 
"  Our  view  is  not  shaken  by  a  different  result  in  cases  arising 
in  States  by  whose  laws  conditional  sales  are  void  as  against 
creditors."^ 

3.  Hennessy  v.  Bacon,  137  U.  S.  Co.,  110  Fed.  Rep.  514,  49  C.  C.  A. 
78,  11  S.  Ct.  17;  Saxton  v.  McNair,       133. 

71  Wis.  459,  37  N.  W.  439.  6.  Low  v.  Welch,   139  Mass.  33, 

4.  Continental  Nat.  Bank  v.  Mc-        29  N.  E.  216. 

Geoch,  92  Wis.  286,  66  N.  W.  606.  7.    Hewitt     v.     Berlin     Machine 

5.  Hewitl  V.  Berlin  Machine  Works,  194  U.  S.  296,  24  S.  Ct.  690, 
Works,  194  U.  S.  296,  24  S.  Ct.  690,       28  Nat.  Cor.  Rep.  609. 

28   Nat.   Cor.   Rep.   609.      See,   also. 
In   re   N.    Y.    Economical    Printing 


766 


TA^BLE  OF  CASES. 


(References  are 

Sec. 

Abbott  V.   Creal 22,     47 

Abbott   V.   Draper 480 

Abbott  V.  Inskip 480 

Abbott  V.   Smith 368 

Abeles    v.    Telegraph    Co.. 297,  692 

Abell  V.  Munson 81 

Abrams   v.   Railroad    Co 288 

Abshire    v.    Corey 507 

Accident  Ins.  Co.  v.  Crandel..      19 

Acebat    v.    Levy 141,  152 

Acers  v.  Curtis 391 

Acheson  v.  Miller 394,  437,  438 

Ackley  v.  Palmenter.  .128,  131,  663 

Acton  V.  Blundell 345 

Adae  v.  Zangs 530 

Adams   v.    BanK 499,  691 

Adams  v.  Beall 58,  60,     63 

Adams    v.    Brennan 301,317 

Adams   v.   Clem 585 

Adams   v.    Coulhard 409 

Adams  County  v.  Hunter 281 

Adams   v.    Crosby 475 

Adams    v.    Crossly 640,  666 

Adams  v.  Fite 67 

Adams  v.    Gay 192,  412 

Adams   v.   Honness 100 

Adams   v.   Kuehn 356,   357,  358 

Adams  v.   Lavens 507 

Adams  v.  New  York 272 

Adams  v.   Nichols .573,  586 

Adams    v.    Stewart 200 

Adamson  v.  Jarvis.  .  .  164,  394,  437 

Adderley  v.  Dixon 667,  669 

Addison  v.  Cox 526 

Addison   v.    Dawson 22 

Addyston  Pipe  and  Steel  Co.  v. 
United  States  ....  323,  324,  326 
517,  549 
Adkins   v.    Ins.    Co 20 


to  sections.) 

Sec. 

Adlard   v.   Booth 587 

Adlin   V.   Greenleaf 628 

Aetna  Iron  Works  v.  Kossuth 

Co 699 

Aiken  v.  Blaisdell.  173,  177,  200,  409 

Aiken  v.  Nogle 133,  134 

Aimstead   v.    Blythe 240 

Ainslie  v.   Wilson 441 

Aiwon  V.  Stout 7 

Akerly  v.  "Vilas 600 

Akro  V.  Demond 417 

Albany  v.  Abbott 225 

Albany  &   Northern   R.   R.   Co. 

V.  Brownell 541 

Alder  ton    v.    Bucboz 138 

Aldine  Manuf.  Co.  v.  Barnard.   464 

Aldine   Press   Co.  v.   Estes 623 

Aldrich   v.   Aldrich 434 

Aldrich    v.    Ames 123,  129 

Aldrich  v.   Bennett 29 

Aldrich   v.    Blackstone 188 

Aldridge   v.   Bank 194 

Alexander  v.   Comber 139 

Alexander   v.    Gish 367 

Alexander  v.  Haskins 14,     22 

Alexander  v.  O'Donnell 173 

Alexander  v.  Railway  Co 295 

Alexander  v.  "Vane 434 

Alexander  v.  Whipple 629 

Alexander  v.   Wright 30 

Alford   V.    Wilson 84 

Alger  V.   Scott 526 

Alger  V.  Scoville 124 

Alger  V.  Thacher 310,  313 

Allen  V.   Allen 562 

Allen  V.  Baker 476,  589 

Allen  V.   Berryhill 9,     21 

Allen  V.  Compress  Co 614 

Allen    V.    Denning 192,  205 


76Y 


TABLE    OF    CASES. 


Sec. 

Allen  V.  Duffie 190 

Allen   V.    Flood 335,   336,  342 

Allen   V.    Ford 464 

Allen  V.  Gardiner 187 

Allen  V.  Hamond 571,  572 

Allen  V.  Hawks 196 

Allen   V.   Jarvis 146 

Allen   V.   Lardner 41,   46,     53 

Allen  V.  Pearce 204 

Allen    V.    Poole 26,    27,     65 

Allen  V.  Rescons 162 

Allen  V.   Stenger 502 

Allen  V.  Thomas 352 

Alles  V.   Billings 9 

Allgeyer    v.    Louisiana. ...  182,  278 
310,  549 

Allin  V.  Shadburne 375 

Allis  V.  Billings 6,     21 

Allis   V.   McLean 697 

Allison   V.   Schmitz 235 

Alorado    v.    Nordholt 631 

Alson   V.   Sharpless 85 

Alston   V.    Boyd 8 

Alston  V.  Richardson 450 

Alsworth    V.    Cordtz 66 

Alt  V.  Graflf 67 

Alt  V.   Lohnas 135 

Alton  V.  Bank 450 

Alves    V.    Hodgson 415 

Alves    V.    Schlesinger 520 

Amble   v.    Whipple 638 

Ambrose   v.   Kerrison 485 

Amer.  Free  L.  Co.  v.  Dykes . .     53 
Amer.   Mort.    Co.    v.    Wright..      27 

American   Bank  v.   Wall 506 

American     Base     Ball     Co.     v. 

Harper 677 

American  Box  Machine  Co.  v. 

Crossman 667 

American        Freehold        Land 

Mortg.   Co.   V.   Sewall .  .  .  399,  420 
American        Freehold        Land 

Mortg.   Co.  V.   Whaley 229 

American  Freehold,  etc.  Mortg. 

Co.  V.  Jefferson 417 

American  Life  Ins.  Co.  v.  Isett     17 


See. 
American   Oalc  Leather   Co.   v. 

Porter 85 

American  Mortg.  Co.  v.  Wright    62 
American    Steel    Co.    v.    Wire 

Drawers  Union 336 

American     Steamship     Co.     v. 

Young 452 

Ames  V.  Foster 123 

Ames   V.   Oilman 199 

Ames  V.  Jackson 113 

Ames  V.  Kyle 187 

Amesbury,   etc.   Manuf.   Co.   v. 

Amesbury 496 

Ames  Iron  Works  v.  Warren..   398 

Amey  v.    Cockey 59 

Amis    V.    Smith 563 

Amonett  v.   Montague 355 

Amont    V.    Christofferson 124 

Ammondson  v.  Ryan.  .227,  228,  230 

Amson  v.  Dreher 145 

Amy    V.    Dubuque 241 

Anderson  v.  Anderson 567 

Anderson  v.  Amstead 571 

Anderson  v.  Harold 98 

Anderson  v.  Haskell 595 

Anderson  v.  Jett 304 

Anderson   v.    Martindale 380 

Anderson  v.  May 116,  135 

Anderson  v.  Perkins 92 

Anderson  v.  Smith 216 

Anderson  v.  Spencer 129 

Anderson  v.  United  States. 323,  324 

Andexried  v.  Railroad  Co 306 

Anding  v.  Levy 416 

Andre  v.   Bodman 125 

Andrews  v.   Andrews 400 

Andrews  v.  Bank 464 

Andrews  v.  Creditors 401 

Andrews  v.  Herriot 408 

Andrews  v.  Pond 419 

Andrews  v.   Portland 652 

Andrews  v.  Torrey 243 

Androscoggin  Water  Power  Co. 

V.  Metcalf 464 

Angel  V.  McLellan.  .45,  47,  49,  470 
Anglesea  v.  Rugeley 576 


768 


TABLE    OF    CASES. 


See. 

Angier   v.    Webber 312,  319 

Angus  V.  Robinson 377 

Annas   v.   Railroad   Co 288,  295 

Anthony  v.  Heman 365 

Anthony  v.   Leftwich 102 

Anthony  v.  Perciful 389 

Antoni  v.  Greenbow 556 

Anvil  Min.  Co.  v.  Humble....   614 

Appeal  of  Morehouse 178 

Appel   V.   Waltman 278 

Appleby   v.   Myers 572,  659 

Appleton  Bank  v.  McGilvrey. .   450 

Arbuckle    v.    Cawhan 517 

Arbuckle   v.   Cowlan 283 

Arbuckle  v.  Reaume 412 

Archard  v.  Horner 603 

Archer  v.   Bogn'e 377 

Archer  v.  James 3 

Ardress's    Appeal 628 

Arkansas,    etc.    R.    R.    Co.    v. 

Whitby 134 

Arkansas,     etc.    Town     Co.    v. 

Lincoln 096 

Arkansas  Valley  Smelting  Co. 

V.   Min.   Co 519 

Armendiaz  v.   Serna 415 

Armfield   v.    Nash 603 

Armitage  v.   Widoe 28,     60 

Armstrong  v.  Best 397,  401,  408 

Armstrong  Co.  v.  Clarion  Co .  . .  394 

438 
Armstrong  v.  Express  Co .  .  288,  289 

Armstrong   v.    Freeman 230 

Armstrong  v.  Latimer 449 

Armstrong  v.  Toler 3^21,  414 

Arnick  v.  Butler 268 

Arnold   v.   Bournique 643 

Arnold  v.  Clifford 164 

Arnold  v.  Garst 79 

Arnold  v.  Potter 417 

Arnold      v.      Richmond      Iron 

Works 9,     23 

Arnot  V.  Coal  Co 305,  324 

Arnot  V.  Pittston 317 

Artcher  v.   Zeh 155,  156 

Arthur   v.    Clark 631 


Sec. 

A.rthur  v.  Oakes 335,  677 

Ashbury    Railway,    etc.    Co.   v. 

Riche 301,  352 

Ashcraft  v.  DeArmand 22 

Ascroft    V.    Butterworth 141 

Asher   v.   Texas 552 

Ashley  v.  Ashley 267,  485 

Ashley  v.  Dixon 343,  346 

Ashmead  v.  Reynolds 21 

Ashton  V.  Dakin 255 

Askew  V.  Bank 406 

Askey  v.  Williams 43,     49 

Aspdin  V.  Austin 603,  622 

Association  v.   Herman 64 

Astey  V.  Emery 152 

Astley    V.    Reynolds 452 

Atcheson  v.  Mallon 165,  324 

Atchison,  etc.  R.  R.  Co.  v.  Eng- 
lish   134,  137 

Atchison,  etc.  R.  R.  Co.  v.  Cock- 
ran  305 

Atchison,  etc.  R.  R.  Co.  v.  Law- 

ler 288 

Atherton  v.  Atherton 400 

Atkins  V.  Banwell 431 

Atkins  V.   Barnstable 473 

Atkins  V.  Kansas 4 

Atkins  V.  Owen 446 

Atkinson  v.  Daniel 624 

Atkinson  v.  Denby 171,  701 

Atkinson  v.  Doherty 340 

Atkinson  v.  Medford 13 

Atkinson  v.  Ritchie 573 

Atkinson  v.  Stewart 390 

Atkinson  v.  Water  Works  Co .  .    349 

Atkinson  v.  Whitehead 584 

Atkyns  v.  Kinnear 319 

Atlmtic  Bank  v.  Bank 503 

Atlanta,     etc.     R.     R.     Co.     v. 

Spear 667,  676 

Atlanta  Nat  Bank  v.  Burke.  .  .    428 

Atlanta  Min.  Co.  v.  Gwyer 228 

Atlantic    Cotton    Mills    v.    Or- 
chard Mills 503 

Atlantic  Phosphate  Co.  v.  Ely.   395 
Atlas  Nat.  Bank  v.  Holm 321 


7G9 


TABLE    OF    CASES. 


Sec. 

Atlee  V.  Fink 451 

Attrill  V.  Patterson 620 

Attorney  Gen.  v.  Telephone  Co.  307 

Attorney  Gen.  v.  Tongue 551 

Atwater   v.    Hough 146 

Atwell  V.  Jenkins 9 

Atwell  V.  Milton 371 

Atwood  V.  Cobb 91,  92,  641 

Atwood  V.  Norton 135 

Atwood    V.    Small 600 

Aughton   V.   Seppings 464 

Augur  V.  Belting  Co 515 

Augusta  Bank  v.  Augusta 509 

Augusta  Sav.  Bank  v.  Stellings  406 

Auhert  v.  Maze 176 

Aultman  v.  Booth 114 

Aultman  v.  Flinn 612 

Austedt  V.   Sutter 258 

Austin    V.    Charlestown    Semi- 
nary   57,     66 

Austin  V.  Coal  Co 492 

Austin  V.  Foster 650 

Austin  V.  Seligman 348 

Avery  v.  Bowden 594 

Ayer  v.   Telegraph   Co 297 

Ayers  v.  Burns 43,     49 

Aymar  v.  Sheldon 115 

Babcock  v.   Chase 352 

Babcock  v.  Fonddu  Lac 449 

Bnbcock  v.  Moore 619 

Bnbeoek   v.   Railroad   Co 290 

Babcock  v.  Terry 164 

Bach  V.  Owen 156 

Bach  V.  Smith 205 

Bachekle  v.   Fiske 373 

Backhouse  v.  Sneed 616 

Backus  V.  Spaulding 507 

Backworth  v.  Young 577 

Bacon  v.  Bacon 501 

Bacon  v.   Bonham 520 

Bacon  v.   Cobb 573 

Bacon  v.  Green.. 59^,  596,  599,  601 

Bacon  v.  Lee 178 

Bacon  v.  McChrystal 109 

Bacon  v.  Texas 531 


See. 

Badger  v.   Badger 626 

Badger  v.  Phinney..27,  64,  69,     71 
Badische  Anilin  Und  Soda  Fab- 

rik   V.   Schott 311 

Baehr  v.  Downey 585 

Baggett    V.    Trulock 231 

Baggott  V.   Sawyer 165 

Bagley  v.  Walker 146 

Baglies  v.  Fettyplace 576 

Bagshaw  v.  Parker 15 

Bagwell  V.  McTighe 632 

Bahm   v.    Deig 696 

Bailey  v.  Bussing.43l,  437,  438,  444 
Bailey  v.  De  Cuspigny. .  .  .576,  580 

Bailey  v.   Gibbs 457 

Bailey  v.  Harris 177 

Bailey    v.    Jackson 624 

Bailey  v.  Marshall 128 

Bailey  v.  Mogg 200 

Bailey  v.  Ogden 88 

Bailey  v.   People 1 

Bailey   v.    Smith 148 

Bain   v.    Clark 136 

Bain  v.  Cline 7 

Bain  v.   Railway 115 

Bain  v.   Whitehouse 638 

Bainbridge   v.    Pickering 45 

Bainter  v.   Fults 598 

Bake  v.  Pope 137 

Baker  v.  Bucklin 124 

Baker  v.  Hodgson 573 

Baker  v.  Howell 493 

Baker  v.  Ins.  Co 602 

Baker  v.  Jewell 377 

Baker  v.  Johnson 576 

Baker  v.   Kennett 58 

Baker  v.  Lauterbach. .  112,  133,  479 

Baker  v.  Lovett 27 

Baker  v.  Massey 453 

Baker  v.  State 538 

Baker   v.    Stone 67 

Balch  V.  Patten 446,  486,  488 

Balderston  v.  Rubber  Co 87 

Baldey   v.    Parker 143 

Baldwin  v.  Flagg 562 

Baldwin   v.    Fletcher 667,681 


110 


TABLE    OF    CASES. 


Sec. 

Baldwin  v.  Golde 9 

Baldwin    v.    Gray 401 

Baldwin    v.    Hiers 152 

Baldwin   v.   Hutchinson 498 

Baldwin    v.    McKay 148 

Baldwin  v.  Newark 560 

Baldwin  v.  Rosier 66 

Baldwin  v.  Steamship  Co 497 

Baldwin   v.   Telegraph   Co 297 

Baldwin  v.  Van  Deusen 27 

Baldwin   v.   Williams 144 

Baldy  v,  Stratton 274 

Balfour  v.   Davis 206,  417 

Balkan  v.  Woodstock 638 

Ball  V.  Mannin 6 

Ball  V.   Stover 80 

Ballance  v.  Samuel 371 

Ballantine  v.  Proudfoot 8 

Ballard  v.   Brown 263 

Ballard  v.  Winter 402 

Ballas  V.   Fogely 352 

Baltimore     Breweries     Co.     v. 

Callahan 134 

Baltimore,    etc.    R.    R.    Co.    v. 

Brydon 639,  645 

Baltimore,      etc.      R.      R.      Co. 

V.  Glenn 116 

Baltimore,      etc.      R.      R.      Co. 

v.  Polly 646 

Baltimore,     etc.     R.     R.     Co. 

V.  Scholes 419 

Baltimore,      etc.      R.      R.      Co. 

V.   School   Dist 582 

Banchor   v.    Mansel 409,447 

Bancroft  v.  Abbott 432 

Bancroft  v.  Dumas 205 

Bang  v.  Windmill  Co .  .   206 

Bangor  Bank  v.   Treat 382,  386 

Bangs  v.  Dunn 283 

Bank  v.  Archer 124 

Bank  v.  Benoist 352 

Bank  v.  Burton 278 

Bank  v.   Cook 208,  226 

Bank  v.  Dealing 232 

Bank  v.  Donnally 638 

Bank  v.   Earle 397 


Sec. 

Bank  v.  Express  Co 289 

Bank    v.    Garlinghouse 232 

Bank  v.  Gettinger 508 

Bank  v.  Gibson 240,  417 

Bank  v.  Grand  Lodge 354 

Bank  v.  Hagner 678 

Bank   v.    Hirsch 513,  514 

Bank   v.   Hoeber 172,  701 

Bank  v.  Jones 511 

Bank  v.   Kimberlands.  .  .  .   524,  526 

Bank  v.  Lea 402 

Bank  v.  Mann 417 

Bank  v.  McClellan 227 

Bank  v.  Metcalf 402 

Bank  v.  Owens 173,  176,  179 

Bank  v.  Pratt 232 

Bank  v.  Price 361 

Bank  v.   Webb 642 

Bank  v.  Williams 401 

Banking  Asso.  v.  Bank 631,  632 

Banking  Co.  v.  Rantenberg.  .  .  .    196 

Banks  v.  Crossland 112 

Banks  v.   Dewitt 555 

Banks  v.  Goodf ellow 8 

Banks  v.  Flint 228 

Banks  v.  Manuf.  Co 91 

Banks  v.  McCosker 198 

Banks   v.   Werts 185,  192 

Banorgee  v.  Henly 370 

Barabacher  v.  Lee 382 

Barber  v.   Fox 119 

Barber   /  sphalt   Paving   Co.   v. 

Denver 359 

Barber   Asphalt  Paving   Co.   v. 

Botsford 286 

Barclay  v.   Pearson 270,  272 

Barker  v.  Bank 242 

Barker    v.    Cory 487,  489 

Barker  v.  Hibbard 43 

Barker    v.    Hodgson 569 

Barker  v.  Ins.  Co 605 

Barker  v.  Scudder 128 

Barker   v.    Stacy 402 

Barker's   Case 12 

Barley  v.  Bussing 394 

Barlow   v.    Ins.   Co 454 


771 


TABLE  OF  CASES. 


Sec. 

Barnaby  v.  Barnaby 27 

Barnard  v.  Backhaus 245,  254 

255,  257 

Barnet  v.  Bank 232 

Barnett    v.    Denison 534 

Barnett  v.  Kinney 406 

Barnett   v.   Pratt 352,  353 

Barnett   v.    Warren 445,  446 

Barnes  v.  Barnes 43,     49 

Barnes  v.   Brown 476,  683 

Barnes  v.  Ins.  Co 352 

Barnes  v.  Johnson 445 

Barnes  v.  McMullens 490 

Barnes  v.  Ferine 385 

Barnes  v.  Shoemaker 478 

Barnes    v.    Toye 49,     67 

Barney  v.   Douglas 508 

Barney   v.    Eutledge 27 

Barnhard  v.  Lupping 183 

Barnhardt  v.   Walls 114 

Barnitz  v.  Beverly 555,  566,  567 

Barnum  v.  Childs 95 

Barnum  v.  Frost 72,     74 

Barr  v.  Church 227 

Barr  v.  Trades  Council 334,  335 

336,  341 

Barras  v.  Coal  Co 125 

Barrett   v.    Dodge 399 

Barrett  v.  Forney 105 

Barrett  v.  Geisinger 667 

Barrett  v.  Goddard 593 

Barrett  v.  Kelley 398 

Barrett  v.  McAllister 114 

Barrett   v.    Veneer    Works ....   696 

Barrows  v.  Turner 402 

Barry  v.   Assur.   Co 496 

Barry  v.   Capen 286 

Barry  v.  Ransom 123,  129 

Barry  v.  Ryan 442 

Bartel  v.  Mathias 627 

Barter  v.  Wheeler 421 

Barth  v.  Backus 406 

Barthell   v.   Jensen 236 

Bartlett  v.  Drake 71 

Bartlett  v.  Mystic  River  Corp.  134 
Bartlett  v.   Smith 255 


Sec. 

BartlefF  v.  Telegraph  Co 297 

Bartlett   v.   Viner 196 

Bartholomew  v.  Jackson 457 

Bartholomew  v.  Finnemore. ...     71 

Barton  v.  Bank 229 

Barton  v.   Benson 165 

Barton  v.  Gray 133 

Barton  v.  Muir 173 

Barwick  v.  Read 517 

Bascom    v.    Zediker 396,399 

Bashford  v.  Pearson 480 

Basket    v.    Moss 279,  280 

Bassett  v.  Hughes 352,  353,  362 

Bassett  v.  Percival 319,  448 

Batchelder  v.   Fisk 388 

Batchelor  v.  Kerkbride 646 

Bateman  v.   Butler 128 

Bateman  v.  Maddox 135 

Bates  V.  Chesbro 154 

Bates  V.  Moore 137 

Bates  V.  Railroad  Co 295 

Bates   V.   Townley 431 

Batsford  v.  Every 187 

Batson   v.  King 123 

Battenbury  v.  Vyse 646 

Battersey's  Case 164,  439 

Batts  v.  Richards  Lumber  Co.  .   515 

Baum   v.   Birchall 401 

Baum   V.   Dubois 99 

Baum  Iron  Co.  v.  Burg 598 

Baumgardner  v.  Taylor 186 

Baurick  v.   Read 283 

Bausernian    v.    Blunt 638 

Bavington  v.  Clarke 30 

Bawber  v.  Savage 87 

Baxter  Bank  v.  Talbot 115 

Baxter  v.   Gray 465 

Baxter   v.    Kitch 110 

Baxter  v.  Portsmouth.  .11,  471,  472 

Baxter  v.  Telegraph  Co 297 

Bayles  v.  Railroad  Co 325 

Bayles   v.    V\'allace 121,  663 

Bayley  v.  Alexander 18 

Bayley  v.   Greenleaf 508 

Bayne  v.  United  Stales 502 

Beach   v.    Hotchkiss 377 


YY2 


TABLE    OF    CASES. 


Sec. 

Beach  v.  Mullen 619,  G40,  651 

Beach   v.   Vandeburg 430,  457 

Beal  V.   Chase 312,  316 

Beale  v.  Williamson 402 

Bean  v.  Bunker 662 

Bearce   v.    Barslovv 233 

Beard  v.  Beard 449,  452 

Beard  v.  Horton 431 

Beard  v.  Linthieum 669 

Beardsley  v.  Hotchlciss 58 

Beardsley  v.    Morgner 521 

Beardsley    v.    Root 446 

Beasley  v.  Teleg.  Co 693 

Beaton   v.    Tarrant 336 

Beattie  v.  Callanan 334,  335 

Beatty  v.  Dufief 453 

Beaty  v.  Grim 128 

Beaumont  v.  Greatliead . .  .  382,  683 

Beaupre  v.  Noyes 531 

Beaupre  v.  Telegraph  Co 297 

Beavan  v.  McDonnell 9 

Beavan  v.   Oxford 508 

Beaver   County  v.   Armstrong.   509 

Becar  v.  Flues 135 

Bechtel  v.  Cone 105 

Beck  V.  Allison 668 

Beck     V.     Railway     Teamsters 

Protect.  Union 335,  336 

Becker  v.  Hallgarten 510 

Becker  v.  Holm 145 

Becker    v.    Mason 69 

Becker  v.  Northway 490 

Becker  v.  Water  Works  Co. 349,  350 

Beekwell    v.    Christie 166 

Beckwith  v.   Frisbie 452 

Beckwith  v.  Talbat 83,     85 

Bedinger   v.    Wharton 64,     71 

Bedow  V.  Tonkin '.  .  .  .   474 

Beebe  v.  Johnson 568,  569 

Beede   v.    Lumprey 492 

Beekman   v.    Fletcher 92 

Beeler  v.  Bank 368 

Beeler  v.  Bullett 66 

Beeler  v.  Young 48,  50,  468 

Beer  Co.  v.  Massachusetts. 532,  547 
Beeston  v.  Caller 618 


Sec. 
Begbie  v.  Phosphate  Sewage  Co.  161 

Behrens   v.   McKenzie 14,  472 

Behrensmeyer  v.  Kreitz 12 

Beitenman's    Appeal 193 

Belford  V.   Woodward 278,  529 

Belknap  v.   Bender 131 

Bell   V.    Bell 400 

Bell   V.    Boyd 393 

Bell  V.  Campbell 330 

Bell  V.   Chaplain 364 

Bell   V.   Gardiner 450 

Bell  V.  Leggatt 276 

Bell  V.  Lent 234 

Bell   V.   Mahin 185 

Bell  V.   McVicker 283,  517 

Bell  V.  Morrison 384,  634,  638 

Bell  V.   Packard Wl,  420 

Bell  V.  Reynolds 682 

Bell  V.  State 271 

Bellamy  v.   Debenham 85 

Bellows   V.   Sowles 119,  121 

Bellows  V.  Stone 467 

Beman  v.  Wessels 185 

Bemis  v.   Becker 179 

Bemis  v.   Hoseley 379 

Benbow    v.    Soothsmith 125 

Benedict  v.  Bachelder 597 

Benedict  v.  Lynch 669 

Bennett  v.  Asso 417 

Bennett  v.  Davis 28 

Bennett    v.    Hull 139 

Bennett  v.  Judson 503 

Bensley   v.    Bigold 176,  178 

Benson  v.  Drake 186 

Benson  v.  Monroe.449,  452,  497,  501 

Benson   v.   Remington 47,  470 

Benson   v.   Paine 370 

Bennson  v.   Savage 224 

Bent  V.  Cobb 87,     99 

Bent  V.  Manning 468 

Benton  v.  Pratt 344,  346 

Bently  v.  Terry 277 

Benton  v.  Goodale 452 

Benze  v.  Hiatt 361 

Benziger   v.    Miller 686 

Berch  v.   Frolick 15 


773 


TABLE    OF    CASES. 


Sec. 

Berdsley   v.   Hotchkiss 66 

Beiesford  v.  Browning 372 

Bergamini   v.    Bastian 319 

Bergenthal    v.    Fribrantz 450 

Bergman   v.   Cleveland 544 

Bergman  v.  McGuire 375 

Bergson  v.  Ins.  Co 518 

Berkhauser  v.  Schmitt 452 

Berlin  Machine  Works  v.  Perry  312 

Berly  v.  Taylor 489 

Bermudez   Asphalt   Paving   Co. 

V.  Critchfield 286 

Bernard  v.  Taylor 245,  246 

Bernhardt   v.    Walls 144 

Berry    v.    Clary 186 

Berry  v.  Cooper 288 

Berry  v.  Doremus 134,  137 

Berry  v.  Thompson 234 

Berthold   v.    Fox 561 

Besch  v.  Ins.  Co 266 

Besore  v.   Potter 386 

Bestor    v.    Hickey 52 

Bestor  v.  Wathen 302 

Bethlehem  v.  Annis 519 

Bethlehem  Borough  v.  Ins.  Co.  464 

Betts  V.  Carroll 21 

Betts    V.    Gibbins 164,    394,437 

438,  439 

Bettsworth  v.   St.  Paul 588 

Beveridge  v.  Livingston 531 

Beverly  v.   Barnitz 566 

Beverley's  Case 8 

Bevier  v.  Covell 233 

Bibb  V.  Allen 89 

Bibber   v.    Simpson 200 

Bice  v.  Building  Asso 125,  127 

Bicknell    v.    Bicknell 46,     73 

Biegler    v.    Trust    Co 263 

Bigelow  V.   Benedict.  .249,  254,  255 

Bigelow  V.  Ins.  Co 19,     20 

Bigelow  V.  Pritchard 560 

Billingbey  v.   Dean 229 

Billings  V.  Ames 328 

Billings  V.  Ins.  Co 20 

Billing's    Appeal 590 

Billington  v.  Cahill 134 


Sec. 
Bingham   v.    Barley.  ..  .55,    59,     64 

Binney  v.  Annan 673 

Bird  V.  Muhlinbrink 146,  694 

Bird  V.  Munroe 138 

Bird  V.  Pope 667 

Bird  V.  Randall 370 

Birkett   v.    Chatterton 203 

Birkmyr  v.  Darnell 96 

Birmingham     Lumber     Co.     v. 

Brinson 445 

Birney  v.  Telegraph  Co 297 

Bisbee  v.  McAllen 177,  197 

Bishop  V.   Palmer 312 

Bishop   V.   American    Preserves 

Co 320 

Bishop  V.  Palmer.  164,  204,  246,  313 

Bishop  V.  Slocomb 508 

Bissell   V.    Balcom 153 

Bissell  V.  Kellogg 243 

Bissig  V.   Britton 96,  129 

Bixby  V.  Church 124 

Bixby  V.  Dunlap 341 

Bize  V.  Dickanson 87 

Black  V.  Railroad  Co 615,  616 

Black  V.  Transportation  Co ...  .    288 

Black  V.  Woodrow  .      579 

Blackburn  v.  Hayes 210 

Blackburn  v.   Smith 448 

Blackburn  v.  Vigors 503 

Blacklock  v.  Dobie 170 

Blackstock  v.  Railroad  Co.  .  .  .    615 

Blackstone  v.  Buttemon 622 

Blackstone  v.  Ins.  Co 20 

Blackstone    v.    Miller 395 

Blackwell    v.    Webster 404 

Blaen    Avon    Coal    Co.    v.    Mc- 

Culloh 492 

Blagen  v.   Tliompson 689,  690 

Blair   v.    Railroad    Co 295 

Blair  v.   Snodgrass 85 

Blair    v.    Wait 428 

Blair  v.  Williams 561 

Blair  Town  Lat.  Co.  v.  Walker  133 

Blake   v.   Supervisors 27 

Blake   v.    Voight 134 

Blake    v.    Williams 406,407 


n4: 


TABLE    OF    CASES. 


Sec. 

Blakeley  v.  Blakeley 6,       9 

Blakeney  v.   Goode 144 

Blakeslee    v.    Holt 473,477 

Blalock  V.  Phillips 464 

Blanch  v.   Cochran 609 

Blanchard  v.  Association.  .430,  432 

Blanchaid   v.   Ely 697 

Blanchard  v.  Low 450 

Blanchard  v.  Railroad  Co 676 

Blanchard  v.  Trim 81 

Blanck  v.   Sadlier 278 

Bland  v.  Fleeman 630 

Blanding  v.   Sargent.. 82,    134,  137 

Blaston  v.  Pye 262 

Bleaden  v.  Charles 440 

Bledsoe  v.   Irvin 368 

Blenkinsop  v.  Clayton 151 

Blight  V.  Page 569,  573 

Bliss  V.  Brainard 205,  408 

Bliss  V.  Lawrence 283,  517 

Bliss    V.    Thompson 440,488 

Bliss  V.  Railroad  Co 8 

Bliss  Co.  V.  Gas  Light  Co 654 

Bliven  v.  Lydecker 228 

Block   V.   Dorman 634 

Blogen  V.  Thompson 685 

Blood  V.  Goodrich 81 

Blood  V.  Wilson.  .473,  477,  651,  655 

Bloom  V.  Hazzard 281 

Bloom  V.  Richards 180,  181,  184 

Bloomer  v.  Henderson 508 

Bloomer  v.  Mclnerney 226 

Bloomer  v.   Nolan.. 46,  53,  63,     64 

Blossom  V.  Barrett 461 

Blount  V.  Hawkins 129 

Blo.xsome  v.  Williams 180,  187 

Blumenthal  v.  Anderson 578 

Blymere  v.   Boistle 356 

Blymer   Ice   Mach.   Co.   v.   Mc- 
Donald     696 

Blythe  v.  Railroad  Co 615 

Board  v.  Blodgett 628 

Board  v.   Millword 228 

Board   v.   W^agaman 201 

Boardman  v.  Cutter 144 

Boardman   v.    Spooner 85 


Sec. 
Board  of  Trade  v.  Kinsey  Co . .   249 

Boast  V.  Firth 589 

Bobbs-Merrill    Co.    v.    Snellen- 

burg 339 

Bobevtson  v.  Robinson 279 

Bodine  v.  Glading 668 

Boehl  V.  Railroad  Co 288 

Boering  v.  Railroad  Co 295 

Bog  Lead  Mining  Co.  v.  Mon- 
tague      148 

Bohannon  v.  Jones 129 

Bohanon    v.    Pope 352,  3o3 

Boice  V.  Boice 562 

Bold  V.  State 181 

Bolton  V.  Street 115 

Bolton  V.  Tomlin 80,  100 

Bona's   Appeal 255 

Bond  V.  Bond 8 

Bonesteel    v.    Todd 370 

Bonney   v.   Seely 446 

Bonsteel  v.  Vanderbilt 588 

Boody  V.  McKenney 27,  64,     65 

Booge  V.  Railroad  Co 603 

Bool   V.  Mix 68 

Boone  County  v.  Jones 635 

Booth  V.  Bank 179 

Booth   V.    Clark 406 

Booth   V.    Illinois 249,  254 

Booth  V.  Mill  Co.... 573,  685,  698 

Booth  V.  Sweezy 210 

Boozer   v.    Trague 105 

Bordentown  v.  Wallace 33 

Borradaile  v.   Hunter 17,     18 

Borries  v.  Hutchinson 698 

Borum    v.   Garland 598 

Boscowitz  V.  Express  Co 289 

Boseley  v.   Taylor 391 

Boston  V.  Farr 125 

Boston   Bank   v.   Chamberlin..     65 

Boston,  etc.  Co.  v.  Boston 449 

Boston,  etc.  R.  R.  Co.  v.  County  537 

Boston  Ice  Co.  v.  Potter.. 330,  340 

457,  478,  519 

Boston  Ins.  Co.  v.  Railroad  Co.  291 

Bostwick  V.  Atkins 56 

Bouchell  V.   Clary 43 


7Y5 


TABLE    OF    CASES. 


Sec. 

Boucas  V.   Cooke 340 

Bouchei-  V.   State  Board 200 

Boulder    Valley,     etc.     Co.     v. 

Farnham 104 

Boulton  V.   Jones 457,   478,  519 

Bour  V.  Kimball 623 

Bourlier  v.  Macauley 343 

Bourne  v.  Cabot 522 

Boursot  V.    Savage 503 

Boutwell  V.  Foster 205 

Bowdish  V.  Briggs 660 

Bowditch  V.  Ins.  Co 175,  177 

Bowdoin  v.  Hammond 218 

Bowen  v.  Hoxie 423 

Bowen  v.   Hall 341,  342 

Bowen  Nat.  Bank  v.  Wilson..   283 

Bower  v.   Hadden 524 

Bowers  v.  Bowers 400 

Bowery  Nat.  Bank  v.  Mayor . .   646 
Bowery  Nat.  Bank  v.  Wilson . .   283 

Bowland  v.  Windley 624 

Bowles  V.  Field 401 

Bowman  v.  Boyd 456 

Bowman  v.  Coflfroth 284 

Bowman  v.  Miller 243 

Bowman  v.  Neely 222,  224,  225 

Bowman  v.  Railroad  Co 648 

Boxendale  v.  Railway  Co 325 

Boyce  v.  Anderson 617 

Boyce  v.  Lake 624,  627 

Boyce   v.   Murphy 122 

Boyce  v.  Smith 6,       8 

Boyce    v.    Tabb 416 

Boyd  V.   Brown 697 

Boyd   V.   Gilchrist 691 

Boyd  V.  Hanson 256 

Boyd    V.    Hind 700 

Boyd  V.  Martin ■ 382 

Boyd  V.  Paul 91 

Boydell    v.    Drummond 85 

Boyden  v.  Boyden 65 

Boydson   v.    Goodrich 402 

Boyer  v.  Berryman 9,  21,     22 

Boyer  v.  Bolender 437 

Boyer  v.  Soules 129 


Sec. 
Boyer   v.    Western   Union   Tel. 

Co 337 

Boyett   V.    Potter 445,491 

Boykin   v.   Campell 519 

Boyland  v.   Leonard 515 

Boyland  v.  Railroad  Co 293 

Boynton  v.  Hubbard 500 

Boynton    v.    Page 184,  187 

Boyse  v.  Adams 267 

Boyson  v.  Thorn 343 

Bozarth  v.  Dudley 473,  477,  640 

Bozeman  v.  Browning 26,     66 

Brace  v.  Wehnert 668 

Bracegirdle    v.    Heald 134,  137 

Brackett  v.   Blake 283,  515 

Brackett  v.  Edgerton 691 

Brackett  v.  Hoyt 197 

Braceville  Coal  Co.  v.  People. 2,  540 

Bradburne  v.  Botfield 386 

Bradford    v.    Chicago 571 

Bradford  Corporation  v.  Pickles  345 

Bradford  v.  Manly 612 

Bradford    v.   McCormick 636 

Bradlaugh  v.  Newdegate 164 

Bradley  v.  Burwell 374 

Bradley  v.   Fuller 345 

Bradley   v.    Owsley 105 

Bradley    v.    Pierson 341 

Bradley  v.   Pratt 27,     34 

Bradley  v.  Rea 185,  192 

Bradley  v.  Richardson 87 

Bradley  v.  Riches 503 

Bradley  v.    Root 526 

Bradner  v.  RoflTsell 646 

Bradshaw  v.  Beard 485 

Bradshaw   v.    Branan 605 

Bradshaw  v.  Railroad  Co 293 

Bradshaw   v.   Van   Winkle ....     70 

Brady  v.  Brennan 490 

Bragdon     v.     Perkins-Campbell 

Co 348 

Brakefield  v.  Anderson 114 

Braithwaite  v.  Aiken 486,  487 

489,  490 
Braman  v.  Dowse 353 


776 


TABLE    OF    CASES. 


Sec. 

Brand    v.    Brand 419 

Brand  v.   Williams 445 

Brandon  v.  Brown 64 

Brandt   v.    Schurchman 699 

Brantley    v.    Wolf 22,     64 

Braxton  v.  State 373 

Brawner  v.   Franklin 64 

Brazee  v.  Bryant 195 

Brechkill  v.  Randall 538 

Breckinridge  v.  Crocker.  ..  .85,     92 
Breckinridge  v.  Ormsby..9,  57,     66 

Breckinridge  v.  Taylor 391 

Brecknock  Company  v.  Pritch- 

ard 573 

Breed  v.  Judd 41,  43,  62,     63 

Breeze  v.  Telegraph  Co 297 

Brennan    v.    Titusville 552 

Bresbane  v.  Adams 165 

Brewer  v.  Boston  Theater ....   384 

Brewer  v.  Dyer 353,  356,  442 

Brewer   v.    Griesheimer 515 

Brewer  v.  Sparrow 487 

Brewsen  v.   Engler , .   287 

Brewster    v.    Bates 634 

Brewster   v.    Kitchell 576 

Brewsler  v.  Sims 510 

Brice  v.  Bannister 526 

Brice  v.  King 352 

Brice  v.  Wilson 485 

Brick    Presbyterian    Church   v. 

New  York 576 

Bride  v.  Clark 257 

Bridge  Co.  v.  Pomroy 351 

Bridgeford  v.  Tuscumbia 284 

Bridgen  v.  Parkes 485 

Bridger  v.  Goldsmith 276 

Bridges  v.  Lanhan....; 697 

Bridges  v.   Stickney 685 

Bridges   v.    Stephens 275,637 

Briggs  V.   Boyd 497 

Briggs  V.  McCabe 27 

Briggs   V.   Vanderbilt 588 

Brigham  v.   Fayerweather.  .22,     23 

Bright  V.  Coffman 427 

Brighton  v.  Railroad  Co 664 

Brill  V.   Tuttle 519,  524 


Sec. 

Brimmer  v.  Rebman 549 

Brine   v.   Ins.   Co 555,  565 

Brisbane   v.    Dacres..450,   452,  501 

Brisendine  v.  Martin 389 

Bristoe,  etc.  Co.  v.  Maggs 85 

Bristow  V.  Lane 352,  353 

Bristow   V.    Sequeville 415 

British,  etc.  Tel.  Co.  v.  Bank..   503 

British  Wagon  Co.  v.  Lea 519 

Britt   V.    Hays 602 

Brittian  v.  Rossiter. .  103,  108,  134 
Britton  v.  Royal  Arcanum.  .  .  .   269 

Britton  v.  Turner 474 

Britton  v.  Water  Works  Co..   349 

Britz  V.  Muscatine 555 

Broach  v.   Smith 231 

Broadhead  v.  Noyes 419 

Broadsman  v.  Paige 391 

Broadw:ell  v.   Getman 82,  137 

Broadwell  v.  Howard 513 

Brockhausen  v.  Bowes 109 

Brockway  v.  Frost 92 

Brockway  v.  Express  Co 410 

Brodeck  v.  Farnum 375 

Bronson   v.    Coffin 689 

Bronson  v.  Ins.  Co 367 

Bronson  v.  Kimpton 278 

Bronson  v.  Kinzie 555,  556 

560,   565,  566 

Bro\ATison  v.  NewBury 557 

Bronson  v.  Rodes 529 

Bronson    Agri.    &    B.    Asso.    v. 

Ramsdell 262 

Brook   V.    Brook 178,  400 

Brook  V.  Hook 352 

Brooklyn  v.   Railroad  Co 614 

Brooks  V.  Berryhill 498 

Brooks  V.   Martin 321 

Brooks    V.    Morgan 94 

Brooks    V.    Stuart 387 

Brookshire   v.    Brookshire 622 

Brow  V.  Brightman 470 

Brown  v.  Adair 202 

Brown  v.  Agnew 433 

Brown  v.  Bank.  .124,  233,  234,  275 

281,  282,  403 


777 


TABLE    OF    CASES. 


Sec. 

Brown  v.   Bateman 526 

Brown   v.   Brown 6 

Brown    v.    Browning 180,  412 

Brown  v.  Buena  Vista 625 

Brown   v.   Buttle 460 

Brown  v.  Cable  Co 297 

Brown  v.  Caldwell 27 

Brown   v.    Cambridge 379 

Brown    v.    Chase 74 

Brown  v.  Conger 102 

Brown  v.   Delafield '. 634 

Brown    v.    Dillahunts 576 

Brown  v.  Duncan.177,  l78,  196,  205 

Brown  v.   Dunn 519 

Brown    v.    Foster 614,  639 

Brown   v.    Harris 595,  599 

Brown    v.    Hodgson 431,  435 

Brown  v.  Holbrook 461 

Brown  v.  Houston 551 

Brown  v.  Ins.  Co 353,  577 

Brown  v.  Jodrell 472 

Brown    v.    Jones 399 

Brown   v.   Kimball   Co 158 

Brown  v.  Kling 314 

Brown  v.   Mahusin 599 

Brown  v.  Slarsh 379 

Brown  v.  Maryland 553 

Brown  v.  McCune 67 

Brown  v.  McKee 382 

Brown   v.    McKinally 501 

Blown  V.  Mitchell 5 

Frown  v.  Mort.  Co 208 

Brown    v.    Mullin 604 

Brown  v.  Nat.  Bank 232 

Brown    v.    Nealey 171 

Brown  v.   O'Brien 352 

I'rown    V.    Pollard 102,  104 

Brown  v.  Railroad  Co. 293,  421,  482 

Brown  v.  Richardson 15 

Brown  v.  Road   Co 450 

Brown    v.    Rodes 278 

Brown  v.   Rounsavell 317 

Brown  v.  Russell 198 

Brown  v.  Smith 697 

Brown  v.  Sutton 105 

Brown  v.   Tel.   Co 296 


Sec. 

Brown  v.  Tuttle 461 

Brown  v.  United  States 580 

Brown  v.  Weiland 409 

Brown  v.  Welch 278 

Brown  v.  Wheelock 26 

Brown    v.    Whipple 85,     97 

Browne  v.  Bank 378 

Browne  v.  United  States 588 

Brownell  v.  Chapman 697 

Brownell   v.   Harsh 128 

Brownell   v.   Welch Ill 

Browning   v.    Carson 369,  382 

Browning  v.  Hamilton 148 

Browning  v.  Morris 500 

Browning  v.   Parker 100 

Browning  v.  Reane 13 

Brubaker   v.   Taylor 624 

Bruce  v.  Flagg 387 

Bruce  v.  Snow 570 

Bruce  v.  Warwick 66 

Bruen  v.  Hone 427 

Bruen  v.  Marquand 377,  381 

Brummitt  v.   McGuire 450 

Brundage  v.   Portchester 446 

Bruner  v.  Nisbett 124 

Bruinaguire  v.  Tillinghast.  .  .  .   455 

Bryan  v.  Booze 185 

Bryan  v.  Lewis 255 

Bryan    v.    Reynolds 284,285 

Bryan  v.   Spurgin 580 

Bryan  v.  Watson 190 

Bryant  v.  Richardson 41 

Bryson  v.  Home 449 

Buchanan   v.   Hubbard 65 

Buchanan  v.   Ins.  Co 266 

Buchanan  v.  Moran 132 

Buchanan   v.   Sahlein 499 

Buchegger  v.  Sehultz 278 

Buck  V.  Biddeford 191 

Buckalew   v.    State 271 

Buckey    v.    Buckey 7 

Bucklen  v.   Hasterlik 678 

Buckley  v.  Beardsley 93 

Buckley    v.    Humanson 198 

Buckhardt  v.  Buckhardt 309 

Buckinhamshire    v.    Drury.  ...      49 


7Y8 


TABLE    OF    CASES. 


Sec. 

Buckman    v.    Bergholtz 173 

Buckman  v.  Nash 142 

Bucknall    v.    Story 455,456 

Buckner  v.  Colcote 626 

Buckner   v.   Stewart 392 

Budd    V.    Hiler 446,  464 

Budd   V.   New  York.. 296,   538,  539 

Buffalo  V.  O'Malley 450 

Buffalo,  etc.  Land  Co.  v.  Belle- 

vue  ,etc.   Imp.   Co 588 

Buffalo,  etc.  R.  R.  Co.  v.  Rail- 
road Co 576 

Bugbee  v.   Kendrickson 122 

Building    and    Loan    Asso.    v. 

Logan 417 

Bulger  V.  Ross 5 

Bulkley  v.  United  States 695 

Bull  V.  Faulkner 518 

Bull  V.  Quincey 440 

Bullard   v.   Hascall 445 

Bullard   v.    Smith 249 

Bullraan  v.  Fenwick 580 

Bullock  V.  Dommit 573 

Bullock   V.   Turnpike   Co 133 

Bullowa  V.  Orga 87 

Bumgarden  v.  Leavite 674 

Burapass  v.  Webb 642 

Bundy  v.  Hyde 460 

Bunn    V.    Guy 316,  319 

Bunn  V.  Prather 573 

Bunn   V.   Riker 245,  262 

Bunneman  v.  Wagner 128 

Burbridge  v.  Fockler 284 

Burchard  v.  Dunbar 419 

Burchfield  v.  Moore 448 

Burdick   v.   People 173,  293 

Burdett  v.  Williams 67 

Burge   V.   Cedar,   etc.   Railroad 

Co 599 

Burger    v.    Rice 519 

Burgess  v.   Pollock 8 

Burgharl   v.    Hall 468 

Burgoyne  v.  Ins.  Co 373 

Burk  V.  Railroad  Co 288 

Burke    v.    Allen 9,     21 

Burke  v.  Mayor 642 


Sec. 

Burley  v.   Russell 67 

Burlingame  v.   Burlingame.  .  .  .    110 
Burlington    Mut.    L.    Asso.    v. 

Heider 219 

Burmudez      Asphalt      Co.      v. 

Critchfield 284 

Burn  V.   Carvalho 526 

Burn  V.  Miller 666 

Burney  v.  Ludling.  .  .284,  301,  302 

Burnett  v.  Baxter 254 

Burnett   v.    Crandall 524,  526 

Burnett  v.  Railroad  Co 421 

Burnett  v.  Telegraph  Co 188 

Burnham   v.   Kidwell 6,  9,     12 

14,  21,     25 

Burnherr    v.    Rau 354 

Burns  v.   Moore 183,  185 

Burns  v.  Munger 614 

Burns  v.  Railroad  Co 395,  408 

Burnside  v.  Merrick 380 

Burphalter  v.   Farmer 126 

Burr  V.  Beers 352,  353 

Burr  V.  Boyer 393 

Burrill  v.  Crossman 580 

Burroughs   v.   Lott 391 

Burroughs  v.  Railroad  Co 290 

Bursinger   v.   Bank 267 

Burt  V.  Meyer 249 

Burt    V.    Union    Cent.    L.    Ins. 

Co 545 

Burtis   V.    Thompson 604,  607 

Burton  v.   Curyea 513 

Burton  v.  Driggs 486,  491 

Burton  v.  Henry 382 

Burton  v.   Larkin 348,  351,  354 

Burton   v.   Stevens 636,  637 

Burton  Coal  Co.  v.  Cox 492 

Burton  Lumber  Co.  v.  Wilder.   443 

Buser   v.    Shepard 562 

Bush   V.   Brown 498 

Bush   V.    Linthicum 51,     60 

Bush  V.  Lisle 5 

Tush  V.  Moore 503 

Bushby  v.  Wunday 258 

Bushel  V.  Wheeler 152 

Bushnell  v.  Bushnell-.  .  388,  390,  434 


Y79 


TABLE    OP    CASES. 


Sec. 

Bushwell  V.   Bicknell 613 

Butchers'  Union  Co.  v.  Crescent 

City  Co 271,  535,  547 

Butler  V.  Butler 609 

Butler  V.  Chambers 542 

Butler  V.   Foster 129 

Butler  V.  Lee 185,  192 

Butler  V.  Horwitz 278,  529 

Butler  V.  Palmer 561 

Butler   V.    Pennsylvania. .  .'f26,  530 

Butler   V.    Sliehan 134 

Butnor  v.  Teleg.  Co 693 

Butterfield  v.  Byron 575,  659 

Butterfield  v.  Merlin 622 

Butters  v.  Glass 116 

Button  V.  Russell 652 

Butts  V.   Broughton 237 

Buxton  V.  Bedall 139 

Buxton  V.  Lester 675 

Byerlee  v.  Mendel 474 

Byrd    v.    Boyd 605 

Byrd  v.  Hughes 451 

Byxbie   v.    Wood 518 

Cabot  V.  Park  Co 679 

Cadavel    v.    Collins 497,501 

Cagger  v.  Lansing 84 

Cadman   v.    Markle 110,  479 

Cahill    V.    Bigelow 113,  122 

Cahill    V.    Hall 457,483 

Cahill  V.  Heuser 655 

Cain  V.  Warf ord 7 

Calahan  v.  Ward 125 

Caldecatt  v.   Smythies 136 

Calder   v.   Rutherford 371,  380 

Caldwell  v.  Alton 198 

Caldwell  v,  Frazier 669 

Caldwell  v.  Signourney 634 

Caldwell  v.  Wentworth ,.   225 

Calhoun  v.   Calhoun 576 

Calhoun  v.  Phillips 183 

Calkins   v.    Chandler 121,  127 

128,  132 

Call  V.  Hagger 559 

Call    V.    Palmer 211 

Callahan  v.  Wood 460 


Sec. 

Callanan   v.    Chapin 84 

Calland  v.   Loyd 502 

Callaway  v.  Mallett 293 

Callaway  Mining  Co.  v.  Gark.   697 

Catterill  v.   Stevens 156 

Callis  V.  Bothamly 98 

Callis   V.   Day 27,     65 

Callo  V.  Brouncker 618 

Calverley  v.  Worth 85 

Cambioso  v.  Moffet 414 

Camden,  etc.  R.  R.  Co.  v.  For- 
syth     290 

Camerlin  v.  Palmer 47,  470 

Cameron  v.  Clark 445 

Cameron  v.  Durkheim 255 

Cameron   v.   White 687 

Cammack   v.   Lewis 266,267 

Camp   V.   Moreman 93 

Camp  V.  Telegraph  Co 297 

Camp  V.  Randall 243 

Campbell  v.    Baxter 451 

Campbell  v.  Coon 403 

Campbell  v.  Clark 452 

Campbell  v.  Crampton 397 

Campbell  v.   Fleming 600 

Campbell  v.  Kuhn 21,     25 

Campbell  v.  Potter ...  667,  668,  671 
Campbell  v.  Richardson. .  .246,  262 

Campbell  v.  Ridgeley 67 

Campbell    v.    Segars 202 

Campbell    v.    Stakes 69 

Campbell  v.  Thomas 84 

Ci  mpbell  v.  Young 192 

Campion    v.    Kille 241,243 

Canal  Trustees  v.  Lynch 643 

Cauda   v.    Wick 654 

C.  &  C.  Electric  Motor  Co.  v. 

Frisbie 612 

Candee   v.    Skinner 635 

Candee  v.  Smith 370 

Candee  v.   Telegraph   Co 297 

Canfield   v.    Fairbanks 14 

Cannan   v.    Bryce 164,  447 

Cannell  v.  Smith 451 

Cannon   v.    Brice 176 

Cannon  v.  Handley 84 


Y80 


TABLE    OF    CASES. 


See. 

Cannon   v.   Olsburg 66 

Cannon    v.    Ryan 186,192 

Cannon  v.  Telegraph  Co 297 

Cantee  v.  Bennett 398 

Cantine  v.  Phillips 468 

Canty   v.   Latteiner 524,  526 

Cappell  V.  Hall 280 

Carberry    v.    Tannehill 667,669 

Card  V.  Hope 279 

Cardell  v.  McNeil 128 

Cardigan  v.   Page 452 

Carew  v.  Johnston 25 

Carew    v.    Rutherford 334,341 

452,  497 

Carey  v.  Freeholders 487 

Cargill  V.  Power 561 

Carib  Prince 421 

Carleton  v.  Woods 204 

Carlisle  v.  Hill 212 

Carlton  v.  Cummings 15 

Carman  v.  Smick 142 

Carmichael    v.    Carmichael . .  . .  667 

Carnegie  v.  Holt 685 

Carnegie   v.  Morrison 353,  356 

357,  403 

Carney  v.  Carney 105 

Carney  v.  Mosher 136 

Carney   v.   Newberry 596,  597 

Carow   V.   Kelly 237 

Carpenter  v.  Atherton 278,  529 

Carpenter   v.   Bank . 696 

Carpenter  v.  Carpenter.  .43,  64,  67 

68,  468 

Carpenter  v.  Davis 113 

Carpenter  v.   Holcomb 606 

Carpenter  v.  Kent 427 

Carpenter  v.  Pridgen 67 

Carpenter  v.   Stevens 568 

Carr   v.   Chapman 626 

Carr   v.   Clough 57 

Carr   v.    Drigs 624 

Carr  v.  Halliday 22 

Carr  v.   Hamilton 506 

Carr  v.  Hilton 626 

Carr  v.  Railway  Co 428 

Carrall  v.  Railroad  Co 514 


Sec. 

Carralton  v.  Bazzett 198 

Carrell    v.    Potter 27,     51 

Carren  v.  McNulty 614 

Carrick  v.  Mincke 88 

Carrier  v.  Sears 21 

Carrington   v.   Roots 100,   112 

Carroll    v.    Welch 474 

Carson   v.   Cochran 449 

Carter  v.  Ailing 312 

Carter   v.    Beckwith 9 

Carter  v.   Carter 386 

Carter   v.   Nichols 521 

Carter  v.   Shorter 85 

Carter  White  Lead  Co.  v.  Kiv- 

lin 134 

Carthage  v.  Gray 589,  591 

Carthrae  v.  Brown 382 

Case  V.  Gerrish 171 

Case  V.  Dodge 401 

Case  v.   Johnson 173 

Cashman    v.    Root 252,253 

Cason   V.   Cheely 139,   146,  694 

Cassady   v.    Clarke 590 

Cassidy  v.  Cattle  Co 656 

Cassitt  V.  Hobbs 92 

Caster   v.    Aides 519 

Castro  V.   Giel 631 

Catawissa  R.  R.  Co.  v.  Titus . .   382 

Catlin   V.   Tobias 474,   477,  478 

Catling   V.    King 89 

Cato  V.  Thompson 681 

Catskill  V.  Messenger 379 

Catt  V.   Tourle 317,  677 

Caulkins    v.    Hellman 145,148 

Cavanaugh    v.    Casselman 98 

Cave  V.  Hastings 85 

Center  v.  McQuestion 123 

Central    Build.    &    Loan    Asso. 

V.  Lampson 219 

Central  Bridge  Corp.  v.  Abbott  423 
Central  Land  Co.  v.  Laidley.  .    531 

Central  Line  v.  Lowe 615 

Central  Salt  Co.  v.  Guthrie...  305 
Central    Shade    Rofler    Co.    v. 

Cushman 317.  322 

Central   S.   R.   Co.  v.   Cushman  317 


781 


TABLE    OF    CASES. 


Sec. 
Central     Trans.     Co.     v.     Car 

Co 303,  330 

Central     Trust     Co.     v.     Bur- 
ton   240,  417 

Central   Trust  Co.   v.   Railroad 

Co 330 

Central  Union  Tel.  Co.  v.  Brad- 
bury     533 

Central     Union     Tel.     Co.     v. 

State 298,  538 

Central    Union    Telephone    Co. 

V.  Swoveland 298 

Chace   v.   Chapin 506 

Chadwick   v.   Knox 287 

Chafee    v.    Bank 406 

Chaffee   v.   Jones 388 

Chafee  v.  Sprague 674 

Chaffe  V.  Wilson 237 

(/hamberlin  v.   McCallister.  .  . .   603 
Chamberlin  v.   Morgan ....  605,  611 

Chambers  v.  Baldwin 343 

Chambers  v.  Goldwin 222 

Chamberlain   v.   Barnes 321 

Chamberlain  v.   Hibbard 699 

Chamberlin  v.  Morgan 602 

Cljamberlin  v.  Scott 599 

Ciiamblee  v.  Baker 474 

Champion    v.    Ames..  182,    272,  274 
326,  411 

Champion   v.    Doty 126 

Champion    v.    Hinkle 562 

Champion  v.  Plummer 88 

(liamplin   v.   Parish 97 

Champlin  v.   Rowley 474,  477 

Chancey   v.    May 367 

Chancey   v.   Powell 631 

Chandler   v.    Simmons.. 22,   58,     64 

Chandler   v.    Sanger 497 

Chandler   v.    State 639,  655 

Chaney    v.    Bryan 8 

Chaney    v.    Sraallwood 15 

Chanter   v.   Leese 377,  382 

Chapel   V.    Hicks 666 

Chapin    v.    Brown 309 

Chapin  v.   Shafer 58,     66 

Chapin  v.  Longworth 519 


Sec. 

Chapins    v.    Matliol 237 

Chapin's  Will  Case 8 

Chaplin  v.  Rogers 151 

Chapline  v.  Atkinson 96 

Chapman   v.   Dalton 588 

Chapman  v.  Hughes.  .  .  .30,  47,  468 

Chapman  v.  Ins.  Co 20 

Chapman  v.  Railroad  Co 537 

Chapman  v.  Robertson.  ...  115,  241 

Chapman  v.  Searle 593 

Chapman  v.  Telegr.  Co 693 

Chappel  V.  Barkley 125 

Chappel  V.   Brockway 274,  314 

Chappie  V.  Cooper.. 33,  40,  43,  468 

Chapsky  v.  Wood 277 

Charles   v.    Hastedt 63,     70 

Charles  v.  Hoskins 635 

Charleston    v.    Benjamin 181 

Charlestown  v.  Rogers 540 

Charlestown    School    Town    v. 

Hay 587 

Charles   River   Bridge  v.   War- 
ren Bridge 534,  535 

Charnley  v.   Honig 660 

Chase  v.  Barrett 588 

Chase  v.   Cliapin 358 

Chase  v.  Lowell 83 

Chase  v.  Telegr.  Co 693 

Chase  v.  Trafford ._ 124 

Chase  v.   Wliitten 206 

Chasemore   v.   Richards 345 

Chatfield  v.  Wilson 345 

Chavannah  v.   State 270 

Cheale   v.    Kenward TUTS 

Cheesman  v.  Wiggins 129 

Cheever   v.    Schall 83 

Chemical  Co.  v.  Pegram 393 

Chemical  Nal.  Bank  v.  Bank.  .   445 
Chenango  Bridge  Co.  v.  Bridge 

Co 534 

Cheney  v.  Cook 98 

Cheney  v.  Dunlap 237 

Cheney  v.   Roodhouse 72 

Cheny   v.   Cowan 576 

Cheorier  v.   Robert 632 

Cherry  v.   Henning 82 


782 


TABLE    OF    CASES. 


Sec. 
Chesebrough  v.  Conover.  .  .284,  285 
Chesapeake,    etc.    Co.    v.    Tele- 
graph Co 307 

Chesapeake    &    Potomac    Tele- 
phone Co.  V.  Tel.  Co 538 

Chesley  v.  King 345 

Cheveront    v.    Textor 171 

Chew    V.    Bank 22,     23 

Chewning  v.  Johnson 408 

Chicago  V.   Allcock 224 

Chicago  V.  Brownell 264 

Chicago  V.  Railroad  Co 538 

Chicago  V.   Rumpff 304 

Chicago  Attach.   Co.   v.   Singer 

Mach.  Co 102,  111 

Chicago,  etc.  Coal  Co.  v.  Liddell  131 
Chicago,  etc.  R.  R.  Co.  v.  Abels  617 
Chicago,  etc.  R.  R.  Co.  v.  Ackley  539 
Chicago,  etc.  Asso.  v.  Hunt ...  63 
Chicago,  etc.  R.  R.  Co.  v.  Bell.  300 
Chicago,  etc.  R.  R.  Co  v.  Chi- 
cago      539 

Chicago,     etc.     K.     R.     Co.     v. 

Davis 288,  291 

Chicago,     etc.     xi.     R.     Co.     v. 

Dumser 293,  294 

Chicago,     etc.     R.     R.     Co.     v. 

Hale 682 

Chicago,     etc.     R.     R.     Co.     v. 

Howison 696 

Chicago,     etc.     R.     R.     Co.     v. 

Iowa 325,  539 

Chicago,     etc.     R.     R.     Co.     v. 

Miller 300 

Chicago,     etc.     R.     R.     Co.     v. 

Minnesota 538,  539 

Chicago,     etc.     R.     R.     Co.     v. 

Mulford .  .293,  294 

Chicago,     etc.     R.     R.     Co.     v. 

People 306 

Chicago,     etc.     R.     R.     Co.     v. 

Sawyer 580 

Chicago,     etc.     R.     R.     Co.     v. 

Simon 290 

Chicago,     etc.     R.     R.     Co.     v. 
Solan 549 


Sec. 
Chicago,     etc,     R.     R.     Co.     v. 

Wabash,  etc.  R.  R 324 

Chicago,     etc.     R.     R.     Co.     v. 

Wallace 288 

Chicago,     etc.     R.     R.     Co.     v. 

Wellman 539 

Chicago  Gas  Light  &  Coke  Co. 

V.  Coke  Co 301,  303,  304 

Chicago  Union  Traction  Co.  v. 

Chicago    305 

Childs  V.  Dobbin 69 

Childs  V.  Monins 120 

Childers  v.  Deane 208 

Chillingworth  v.  Tinware  Co...  402 
Chipley  v.  Atkinson 

341,  342,  344,  347 

Chipman  v.  Morrill 388,  436 

Chippewa,    etc.     R.    R    Co    v. 

Railroad    Co 284 

Chism  V.  Schiffer 643,  646 

Christ  V.   Armour 604 

Christian  v.  Ins.  Co 427 

Christie  v.  Railroad  Co 325 

Christie  v.  Sawyer 526 

Christmas  v.  Russell 526 

Christy  v.  Sullivan   449 

Church  V.  Brown 94 

Church  V.  Coke  Co 444 

Church  V.  Proctor 275 

Churchill   v.   Holt 438 

Churchward   v.    Queen 579 

Churchward  v.  Reg 061 

Citizen's  Bank  v.  Grafflin 450 

Citizen's  Kat.  Bank  v.  Donnell  232 

City  Bank  v.  Railroad  Co 511 

City  Loan  Asso.  v.  Gallagher..   219 

City  Loan  Co.  v.  Cheney 219 

Civil   Rights   Cases 509 

Claffin  V.  Kimball 526 

Claflin  V.  Boorum 212 

Claflin  V.  Godfrey 448 

Claflin  V.  Mayer 398 

Clampet  v.   Bells DO 

Clancy  v.  Overman 580 

Clancey  v.  Salt  Manuf.  Co 320 

Clapp  V.  Pawtucket  Inst 375 


783 


TABLE   OF    CASES. 


Sec. 

Clapp  V.  Webb 123,  128 

Claremont  Bank  v.  Wood.  .382,  386 

Clark  V.  Allen 267 

Clark  V.  Baker 448 

Clark  V.   Burnham 144 

Clark    V.    Cable 377 

Clark  V.   Clark 105,  400 

Clark    V.    Crosby 312 

Clark  V.  Finlon 239 

Clark  V.  Gilbert 475,  589 

Clark  V.  Goddard 27 

Clark  V.  Howard 354 

Clark  V.  Hurd 157 

Clark  V.   Iowa  City 241 

Clark  V.  James 128 

Clark    V.    Jones 125 

Clark   V.   Leslie 48,  49,  469 

Clark  V.  Lyon 352 

Clark  V.  Marsiglia. .  .579,  603,  608 

Clark    V.    Mayor 610 

Clark  V.  McFarland 361 

Clark  V.  Needham 321 

Clark  V.  Parish 371 

Clark  V.  Pendleton 134 

Clark  V.  Pinney 445 

Clark  V.  Railroad  Co 617 

Clark  V.  Reyburn 555 

Clark  V.  School  Dist 599 

Clark  V.   Sisson 212 

Clark  V.  Watson 646 

Clark  V.   White 171 

Clarke    v.    Dutcher 449 

Clarke  v.  Hawkins 506 

Clarke  v.  5lariott 151 

Clarke  v.  Shee 502 

Clarks  v.  Spence 275 

Clason  V.  Bailey 83,  98 

Classey  v.  Ins.  Co 267 

C'lawson   v.   Munson 229 

Clay   V.    Powell 317 

Clay  V.  Severance 434 

Clay  V.  Yates 164,  694 

Clayton  v.  Andrews 139 

Clayton    v.    Blakey Ill 

Clayton  v.  Ellis 567 

Clayton  v.  Kynaston 377 


Sec. 

Clayton  v.   Somers 485 

Cleary  v.   Sohier 572,  659,  665 

Clearwater  v.  Meredith 384 

Clegg  V.  Levy 415 

Clemens  v.  Wilkinson 624 

Clement  v.  Telegraph  Co 297 

Clements  v.  Railroad  Co 300 

Clement's  Apeal 129 

Clendening   v.    Church 266 

Clendening  v.  Wyatt 520 

Cleveland  v.  Construction  Co . .       4 

Cleveland  v.  Richardson 701 

Cleveland,  etc.  Railroad  Co.  v. 

Closser   324 

Clewes  V.  Jamison 249,  254 

Clifford  V.   Brandon 342 

Clifford  V.   Luhring 121,  123 

125,  132 

Clifford  V.  Watts 568,  571 

Clift  V.  Schwabe 18 

Clinan  v.  Cook 103 

Clinton  Bank  v.  Hart 370 

Clippinger  v.  Hepbaugh .  . .  282,  284 

Clodfelter  v.  Cox 508 

Close  V.  Phipps 452 

Clouch  V.  Moyer 433,  441 

Clough   V.   Davis 185 

Clough  V.  Goggins  183 

Clough  V.  Kyne 402 

(Jlovves  V.   Brooke 468 

Coil  Creek  M.  Co.  v.  Moses 492 

Coates  V.  Sangston C55 

CoatoH  V.  Wilson 39 

Cobb  V.  Billings 205 

Cobb  V.  Charter 497 

Cobb  V.  Tirrell 701 

Cobbey  v.  Buchanan. 40,  42,  50,     67 

Cobleigh  v.  Pierce 171 

Coburn  v.  Ware 387 

Cochran   v.   Ward 115,   116,  205 

Cochran  v.  Railroad  Co 661 

Cockburn   v.   Ashland   Co.. 690,  698 

Cocke  V.  Montgomery 7 

Cockle  V.  Flack 210 

Cockrell  v.  Thompson 249 

Cocks  V.  Simmons 37 


V84 


TABLE    OF    CASES. 


Sec. 

Cocks  V.  Varney 363 

Code  V.  Carlton 515 

Coddingham  v.   Goddard 88 

Codington  v.  Bispham 5G2 

Coddington  v.  Goddard   83 

Codman  v.  Krell 398 

Cody  V.  Railroad  Co 292 

Cody  V.  Quarterman Ill 

Coe   V.   Erral 326,  395 

Coffee  V.  Williams 429 

Coffin  V.  Landis    620,  622 

Cogel  V.  Mickow 558 

Coghlan  v.  R.  R.  Co 399,  419 

Cohen  v.  Cohen 460 

Cohen  v.  Envelop  Co 320 

Cohn  V.  Plumer 473 

Coit  V.  Stewart 490 

Cole  V.  Cole 13 

Cole  V.   Edwards 319 

Cole  V.   Cunningham 258,  406 

Cole  V.   Hutchinson 122,  125 

Cole  V.  Kernon 515 

Cole  V.  Malcom 435 

Cole  V.  Milmine 255 

Cole  V.  Pennoyer 27,     28 

Cole  V.  Singerly 134 

Coles  V.  Trecothic 85 

Colburn  v.   Patmore 164 

Colburn  v.  Phillips 356 

Colburn  v.  Woodworfh 605 

Coleman  v.  Ballandi 558 

Coleman   v.   Foster 509 

Coleman   v.   Frazer 7 

Coleman   v.    Hiler 354 

Coleman  v.  Thurmond 628 

Coleman   v.    Whitney 352 

Colgin  V.  Bank 232 

Collar  V.  Patterson 460 

Collard  v.  Railroad  Co 683,  684 

Collier  v.  Coates 480 

Collins  V.   Blantern 330,  500 

Collins  V.  Loche 309,  322 

Collins  V.  Price 603 

Collins  V.  Railroad  Co 532 

Colliins  V.  Stanfield 124,  125 

Collins  V.  Sherman 535 


Sec. 

Collins  .  Townley 7 

Collister  v.  Hayman 509 

Collyer  v.  Collyer 460 

Collyer  v.  Moulton 608 

Colman  v.   Jenkins 442 

Colsell  V.   Budd 624 

Columbia  College  v.  Thacher..  672 
Columbia  County  v.  King.  .^22,  224 
Columbus,    etc.    R.    R.    Co.    v. 

Bridges 616 

Columbus,    etc.    R.    R.    Co.    v. 

Watson    676 

Colwell    V.    Peden 497 

Comes  V.   Lawson 112 

Combs  V.  Bateman 156 

Combs   V.   Scott 625 

Commercial  Bank  v.  Davidson.  420 
Commercial  Bank  v.  Jackson..  403 
Commercial     F.     Ins.     Co.     v. 

Morris    129 

Commercial  Nat.  Bank  v.  Gil- 
lette        148 

Commissioners  v.  Water  Power 

Co 541 

Commonwealth  v.  Alger 547 

Commonwealth  v.  Evans 542 

Commonwealth  v.   Farren 542 

Commonwealth  v.  Gardner....  551 
Commonwealth  v.  Graham ....  29 
Commonwealth  v.  Hamden....  87 
Commonwealth      v.      Hamilton 

Mfg.  Co 4,  544 

Commonwealth  v.  Harmel 551 

Commonwealth  v.   Harrington.   274 

Commonwealth  v.  Has 181 

Commonwealth  v.  Isenberg.  ...  2 
Commonwealth  v.  Josselyn.  ...    189 

Commonwealth  v.  Keary 173 

Commonwealth  v.  Kendig 193 

Commonwtalth  v.  Lane    400 

Commonwealth  v.  Nesbit 181 

Commonwealth  v.  Newhall   .  .  .    198 

Commonwealth  v.  Ober    551 

Commonwealth  v.  Perry . .  2,  4,  540 

Commonweath  v.  Railroad  Co.  188 

534,  541 


T85 


TABLE    OF    CASES. 


Sec. 
Commonwealth  v.  Sampson.  188, 189 

Commonwealth  v.   Sheriff 270 

Commonwealth  v.  Simonds....   264 

Commonwealth  v.  Sisson 270 

Commonwealth  v.  Specht 181 

Commonwealth  v.  Thacher....    271 
Commonwealth  v.   Vrooman.  .  .   545 

Commonwealth  v.  Waite 542 

Commonwealth  v.  Wilson 173 

Commonwealth  v.  Wright 270 

Com.  Nat.  Bank  v.  Burch 508 

Comons  v.  Boyei" 180 

Compton    V.    Martin 82 

Comstock  V.   Hier 446 

Comslock  V.  Norton 130 

Concord   v.    Rumsey 13 

Conkey  v.  Hart 560 

Conley  v.  Blalock 202 

Conn  V.  Coburn 34,  48,  469 

Conn  V.  McCollough 351 

Connecticut  Ins.  Co.  v.  Lathrop     19 
Connecticut    Life    Ins.    Co.    v. 

Akens   19 

Connecticut   Mut.    L.    Ins.    Co. 

V.  Groom   19 

Connelly  v.  Parsons 166 

Connelly  v.  Telegr.  Co 693 

Connelly  v.  Union  Sewer  Pipe 

Co 2,  321,  341 

Conner  v.  Baldwin 84 

Conner  v.  Henderson 448 

Conner  v.  New  York 426 

Conner  v.  Shew 485 

(Jonners  v.  Holland 242 

Conn.    Mut.    L.    etc.    Insurance 
Co.  V.  Cushman.  .  .  .555,  556,  564 

Connor  v.   Black 248,  249,  251 

Conover  v.  Van  Mater 239 

Conrad  v.  Lane 67 

Conroe  v.  Birdsall 27,     61 

Conrey  v.   Brandegee 622 

Constable  v.  Steamship  Co. .  .  .   288 
Conservative     Build.     &     Loan 

Asso.  V.  Cady 219 

Consumers    Oil     Co.    v.     Nune- 
maker 312 


Sec. 
Consumers'  Pure  Ice  Co.  v.  Jen- 
kins     697 

Continental  Bank  v.  McGeoch.    171 
700,  701,  702,  703 

Conturier    v.    Hastie 87,  128 

571,  572 

Converse    v.    Brainerd 616 

Conville  v.  Sheridan 427 

Conway  v.  Cutting 526 

Cook  V.  Bell 518 

Cook  V.  Berrott 352 

Cook  V.     Bonitz 427,  429 

Cook  V.  Boston 452 

Cook  V.  Cook 400 

Cook   V.    Cole 506 

Cook   V.    Collingridge 15 

Cook  V.  Husted 425 

Cook  V.  Johnson 316 

Cook  V.  McCabe 575,  659 

Cook  V.  Millard 146 

Cook  V.  Moffat 398 

Cook  V.   Parker 9 

Cook  V.  Pennsylvania 551 

Cook  V.  Phillip 179 

Cook  V.   Redman 135 

Cook  V.  Roche 402 

Cook  V.  Shipman 284 

Cook  V.  Todd 420 

Cook  V.  Van  Horn 406 

Cook   V.   Willard 694 

Cooley  V.  Lobdell 104 

Cooley  V.  Wardens 548 

Coombs  V.  Railroad  Co 148,  152 

Coombs  V.  Wilkes 88 

Coon  V.  Spicer 234 

Cooper  V.  Allport 43 

Cooper  V.  Cooper 461,  487 

Cooper  V.  Elston 139 

Cooper     V.  Fynmore 508 

Cooper  V.  Griffin 200 

Cooper  V.  Hornsby 101,  113 

Cooper  V.     Ins.  Co 18 

Cooper  V.  Nock 208 

Cooper  V.  Rhodes 26 

Cooper  V.   Waldegrave 115 

Cooper  Manuf.  Co.  v.  Ferguson  411 


786 


TABLE    OF    CASES. 


Sec. 
Coosa  River  Steamboat  v.  Bar- 
clay      616 

Coote  V.  Jeeks 407 

Cope  V.  Rowlands 173,  175,  177 

178,  179 

Cope  V.   Wheeler 234,  240,  241 

Coopeland   v.    Summers 355 

CopenratH  v.  Kienly 12,     22 

Coquillard   v.    Bearss 284 

Corbet  v.  Littlefiefd 402 

Corbett  v.  Gaslight  Co 98 

Corbett   v.   Watson 139 

Corbin  v.  Tracy 673 

Corcoran   v.   Bowers 212 

Corcoran  v.   Coal   Co 254 

Cordes   v.   Miller 576 

Corkins  v.  Collins 127 

Corliss   V.   Fleming 634 

Corliss  V.  Walker  Co 340 

Cornell  v.  Electric  Co 128 

Corning  v.  Ludlum 243 

Cornish  v.  Abington 428 

Cornwall  v.   Gould 389 

Corpe  V.   Overton 38,     63 

Corporation  v.  Minden 181 

Cort  v.  Railway  Co.. 579,  594,  606 

Corwin  v.  Wallace 473,  477 

Costar   V.    Brush 328 

Coster  V.  Pruyn 362 

Costigan  v.  Lunt 382 

Costigan  v.  Railroad  Co... 602,  605 

Cota     V.  Mishow 650 

Cotheal  v.  Blydenburgh 241 

Cotterell  v.  Button 629 

Cothran  v.  Ellis. ^46,  249,  251,  254 

Cottrell   v.    Southwick 234 

Gotten  V.  McKenzie 204 

Cotton  v.  Ulnor 8 

Couch  V.  Kansas  City 452 

Couch  V.  Mills 376,  377 

Coughlin  V.   Knowles.lOl,  102,  480 

Council  V.   Burnett    499 

County  V.  Hinkley   524,  526 

County   Court  v.   Griswold ....    540 

Coupland  v.   Railroad   Co 617 

Courtwright    v.    Courtwright .  .    470 

787 


Sec. 

Courtwright   v.    Deeds 351 

Courtright  v.  Leonard 148 

Cover  V.   Smith    249 

Covey  V.  Cutler   406 

Covington,    etc.    R.    R.    Co.    v. 

Sanford    539 

Cowan  V.  Fairbrother 312 

Cowan  V.  Milbourn    274,  275 

Cowes  V.   Lawson    480 

Cowles  V.   Brittian    551 

Cowdin  V.  Cottgetren 122 

Cox  V.   Brewing  Co 134 

Cox  V.  Johnson   26 

Cox  V.  Mailatt 563 

Cox  V.  Valkert    506 

Cox  V.  McGowan  53 

Cox  V.  Montgomery   626 

C  ox  V.  Painter   90 

Cox  V.  United  States 240,  420 

Coxe  V.  Martin    560 

Coxhead  v.  Mullis   26 

Coyle   V.   Campbell    200 

Crabtree  v.  Messersmith    594 

Craddock  v.  Mortgage  Co 330 

Craft  v.  McConoughy.250,  305,  320 

Crafts    v.    Carr    43 

Crafts  v.  Sweeney   375 

Cragin  v.  Lamkin   406 

Cragin   v.    Railroad   Co 615 

Craig  V.  Van  Bebber 53,     58 

Craig  V.  Williams     402 

Grain  v.  Petrie 685 

Cram  v.  Cram    7 

Crampton  v.   Ballard    352 

Crampton  v.  Logan 627 

Grandall   v.   Payne    354 

Crandall  v.   Wellig    667 

Crandell  v.   White    260,  261 

Crane  v.  Ailing 378,  379 

Crane  v.  Gough   101 

Crane  v.  Kildorf    600 

Crans  v.  Hunter    352 

Cranshay  v.  Collins 15 

Cranston  v.  Linihet 437 

Crapo    V.    Kelly 406 

Crary  v.  Railroad  Co 291 


TABLE    OF    CASES. 


Sec. 

Clary  v.  Van  Bebber 64 

Craven  v.  Bates 240 

Craven  v.  Freeman 388,  436 

Cravens  v.  Cotton  Mills  Co 384 

Crawford  v.  Brooke    515 

Crawford  v.  Brown 348 

Crawford  v.  Edison    121,  132 

Crawford  v.  Edwards   353 

Crawford  v.  Johnson    214 

Crawford   v.   Kink    128 

Crawford  v.  Railroad  Co 290 

Crawford    v.    Russell 500 

Crawford  v.  Soovell   22,     23 

Crawford    v.    Spencer 249,  251 

254,  259 

Crawson  v.  Telegr.  Co 693 

Crayton  v.  Clark   507 

Creighton  v.  Sanders Ill 

Crescent  Manuf.  Co.  v.  Hanuf. 

Co 605,  62^,  686,  687 

Cressinger  v.  Welch 56,     64 

Cribbs  v.  Soule 499 

Crider  v.  Association   222 

Crim  v.  Post 234 

Crippen  v.  Heermance 235 

Cripps    V.    Hartnall 123,  129 

Cripps  V.  Reade 448 

Crisfield  v.  State  434 

Criswell  v.  Whitney   405 

Critten  v.  Bank   428 

Crockett  v.  Scribner   146 

Croft  v.  Ins.  Co 80,  129 

Cromwell  v.  County  of  Sac .... 

115,  399,  417 

Cronan  v.  Fox   402 

Cronin  v.  Olson   211 

Cronk  v.  Trumble   667 

Crookshank  v.  Burrell 139,  146 

Crosbie  v.  McDonald 106 

Crosby  v.  Fitch 583,  615 

Crosby  Hardware  Co.  v.  Tester 

' 145,  154 

Crosman  v.  Lynn   191 

Cross  V.  Cheshire 431 

Cross  V.  O'Donnell 145 

Cross  V.  People 270 


Sec. 
Cross  V.  Richardson.  .121,  128,  271 

Cross  V.  Trusdale 365 

Crotty  V.  Ins.  Co 266,  267 

Crouch  V.  Gutman 699 

Crowe  V.  Peters   7 

Crowell  V.  Curner   353 

Crowder  v.  Austin 166 

Croy  v.  Toney 135 

Crum  V.  Sawyer 520 

Cubbege  v.  Napier 240 

Cuddee  v.  Rutter   674 

Cuff  V.  Penn 648 

Culbreath  v.  Culbreath 453 

Cullen  V.  Sears 666 

Culver  V.  Bigelow 221 

Culver  V.  Pullman 208 

Cumberland   Glass   Manuf.    Co. 

V.  Glass  Bottle,  etc.  Asso ....   336 
Cumberland  R.  R.  Co.  v.  Baab.    302 

Cumming  v.  Fisher   441 

Gumming  v.  Hackley 446 

Cummings  v.  Arnold 81 

Cummings  v.  Foss 321 

Cummings  v.  Powell.  .  .  .27,  57,     64 

Cummings  v.  People 371 

Cummings  v.  Stone  Co 320 

Cummington  v.  Belchertown.  .  .   400 

Cummins  v.  Wise 213 

Cundell  v.  Dawson   178,  196 

Cunningham  v.  Bank   257 

Cunningham  v.  Irwin 468 

Cunningham  v.  Monroe 452 

Cunningham  v.  Reardon 468 

Cunningham  v.  Williams 98 

Curran  v.  Galen. 334,  335,  336,  341 

Current  v.  Fulton   384 

Currie  v.  Anderson 151,  152 

Currie  v.   Railroad   Co 302,  661 

Curry  v.  Plow  Co 51,  52,     70 

Curson  v.  Mcnteiro 370 

Curt  v.  Lassard   677 

Curtin  v.  Patton   27,  67,     70 

Curtis  V.  Aspinwall 165 

Curtis  V.  Brown 128 

Curtis  V.  Brownell 7 

Curtis  V.  Gokey   316 


Y88 


TABLE    or    CASES. 


Sec. 

Curtis  V.  Railroad  Co 582 

Curtis  V.  Sage   82,  134,  137 

Curtis  V.  Whitney 556,  557 

Cusack  V.  Robinson.  .  .148,  150,  152 

Cusic  V.  Douglas   558 

Cutler  V.  Wright   214,  387 

Cutter  V.  Close 473,  640 

Cutting  V.  Railroad  Co 684 

Cutsinger  v.  Ballard 105 

Cutts  V.  Gordon 375 

Cutts  V.  Perkins    519 

Cuyler  v.  Cuyler 376 

Dacosta  v.  Davis 115,  577 

Da  Costa  v.  Jones 245,  262 

Daggers  v.  Van  Dyck 625 

Daggett  V.  Johnson  614 

Dahoney  v.  Dahoney 193 

Dalby  v.  Life  Assur.  Co 266 

Dalby  v.  Pullen   681 

Dale  V.  Hamilton 104 

Dale  V.  Knepp 190 

Daley  v.  Association 227 

Daley  v.  Ericsson   371,  380 

Daley  v.  Investment  Co 217,  227 

Dallman  v.  King 473 

Dalton  v.  Jones  72 

Dalton  v.  Murphy 398 

Daly  V.  Stetson   519 

Dana  v.  Bank 428 

Dane  v.  Kirkwall    472 

Danforth  v.  Lancy   102 

Daniel  v.   Frazer   138 

Daniel  v.  Mitchel . 571 

Daniel  v.  Telegraph  Co 297 

Daniels  v.   Hatch    379 

Daniels  v.  Newton   ...... .594,  604 

Daniels  v.  Meinhard 524,  526 

Daniels  v.   Pratt    269 

Dannenhauer  v.  Browne 483 

Dant  v.  Head 134,  137 

Danube,  etc.  Co.  v.  Xenos 604 

Darby  v.  Boocher   48,  469 

Darling  v.  Railroad  Co 290 

Darlinger  v.  Earle 171 

Darly  v.   Smith    677 


Sec. 

Darraugh  v.  Blackfod   53,     64 

Darrell  v.  Tibbetts 404 

Darrow  v.  Family  Fund  Soc.  . .      16 
Dartmouth    College    v.    Wood- 
ward    426,  534 

Darst  V.   Bates    128,  237 

Dashaway  Asso.  v  Rogers 487 

Dater  v.  Earl   409 

Dauchey  v.   Drake 639,  666 

Davenport  v.  Cong.  Society.  . .   700 

Davenport  v.  Gentry 519 

Davies  v.  Davies 311,  314 

Davies  v.  Humphreys 388,  434 

Davis  V.  Turton 66 

Davis  V.  Barger   185 

Davis  V.  Belford ^82,  383 

Davis  V.  Booth   323,  383 

Davis  V.  Bronson 384,  408,  409 

Davis  V.  Brown    312 

Davis  V.  Caldwell   41,     50 

Davis  V.  Chouteau 368,  377 

Davis  V.  Clark   634 

Davis  V.  Coburn   3^58,  519 

Davis  V.  Coleman   399 

Davis  V.  Creamery  Co 383,  385 

Davis  V.  Cupp   383 

Davis  V.  Dudley   27,     56 

Davis  V.  Eastman   151 

Davis   V.    French 485 

Davis  V.  Furniture  Co 594,  698 

Davis  V.  Gallagher    429 

Davis  V.  Garrett   583 

Davis  V.   Harper    632 

Davis  V.  Jones   383 

Davis  V.  Knoke   383 

Davis  V.   Lane    15 

Davis  V.  Light  Co. . 661 

Davis  V.  Marlborough 283,  517 

Davis  V.  Murray   383 

Davis  V.  Phillips   7 

Davis    V.    Railroad    Co 288,291 

410,  421 

Davis  V.  Randall   232 

Davis   V.    Reyner 119 

Davis  V.  Rowell   138 

Davis  V.  Rupe   560,  561 


789 


TABLE    OF    CASES. 


Sec. 

Davis  V.  Setool  Dist 652 

Davis  V.  Shafer   383 

Davis  V.   Sloman    228 

Davis  V.   Smith    573 

Davis  V.  State 538 

Davis  V.  Statts    96 

Davis  V.  Talcott   641 

Davis  V.  Taiver   14 

Davis  v.  Van  Bureii  374 

Davis  V.  Water  Co 349 

Davidson  v.  Bohlman   200 

Davison  v.  Davison    465,  467 

Davidson  v.  McGregor    701 

Davren  v.  White   5 

Dawes  v.  Howard  47,  470 

Dawes  v.  Hubbard 473 

Dawes  v.  Peck   152 

Dawson  v.  Holmes 64 

Day  v.  Caton 458 

Day  V.  Elmore  94 

Day  v.  Jeffords   588 

Day  V.  Lacasse 84 

Day  V.  McAllister   192 

Day  v.  Seely   7 

Day  V.  Eailroad  Co 108 

Dayton  v.  Fargo 518 

Dayton  v.  Moore 227,  228 

Dean  v.  Anderson   107 

Dean  v.  Dicker 266 

Dean  v.  Ins.  Co 17,     18 

Dean  v.  Newhall    376,  378 

Dean  v.  Walker   362,  363,  365 

Dearie  v.  Hall    508 

De  Begins  v.  Armistead 196 

Do  Biel  v.  Thomson 465 

Decan  v.   Shipper    512 

Deeell  v.  Lewenthal.41.  44.  45.     50 

Deering  v.  Winchelsea 434 

De  Francisco  v.  Barnum 317 

Defiance  Water  Co.  v.  Defiance  626 

Deitz  V.  Sutcliffe 464 

De  Gogorza  v.  Ins.  Co 20 

De  La  Grange  v.  Telegr.  Co. .  .    297 

Delaney  v.  Anderson   365 

Delano   v.   Blake    65 


Sec. 
Delaware,    etc.    R.    R.    Co.    v. 

Stockyard   Co 538 

Delaware  &  Atlantic  Telephone 

Co.  V.  Telegraph  Co 296 

De  Leon  v.   Frevino 330 

Delevan  v.  Wright 105 

Delier  v.  Agri.   Society 262 

Dellinger  v.  Foltz 64 

Delop  V.  Windsor 402 

Delz    V.    Winfree 341 

De  Mary  v.  Bartenshaw 251 

De  Meli  v.  De  Meli 632 

Demeritt  v.  Bickford   129 

De  Mesnil  v.  Dakin 498 

Demi  v.  Bassler   136 

Deniorest  v.  Willard 518 

Demoville  v.  Davidson  County.  532 

Denham  v.  Bryant 473 

Dening  v.  Railroad  Co 583 

Denison  v.  Crawford 284 

Denmead  v.  Coburn 474 

Dennett  v.  Dennett    6,  9 

Dennis  v.  Clark    47,  470 

Dennis  v.  Ins.  Co 20 

Dennis  v.  Moses   1,  278 

Denney  v.  Faulkner 419 

Denny  v.  Railroad  Co 583 

Denny  v.  Smith 387,  634 

Denny  v.  Williams 147,  151 

Dent  V.  West  Virginia 550 

Dentler  v.  O'Brien 66 

Depau  V.  Humphreys   115 

Derby  v.  Johnson 579 

Dermott  v.  Jones    

442,  473,  477,  573,  587,  655 

Desha  v.   Robinson    599 

Dc  Sobry  v.  De  Laistre  .  .  .  274,  420 

Dethlifs  V.  Tomsen    316 

Detrick  v.  Myatt 37 

Deutsch  v.  Bond   93 

Devaux  v.  Conolley 448 

Devaynes  v.  Noble 428 

Devine  v.  Edwards 450,  640 

Devlin  v.  New  York.  .5L5,  518,  519 

Devol  v.  Mcintosh 352 


790 


TABLE    OF    CASES. 


Sec. 

Dewees  v.  Miller   246 

Dewey  v.  Allgire   6,  7,     24 

Dewey  v.  Erie 613 

Dewey  v.  School  Dist 591 

De  Wolf  V.  Johnson  241,  417 

Dexter  v.  Blanchard   96 

Dexter  v.  Hall 9,  21,     28 

Dexter  v.  Norton 

475,  572,  574,  658,  659 

Deyoe  v.  Woodworth    280 

Dial  V.  Wood   35 

Diamond  Match  Co.  v.  Roeber . . 

304,  312,  314,  318 

Diebold,  etc.  Lock  Co.  v.  Barnes  454 

Dier's  Case   309 

Dietrich  v.  Railroad  Co 293 

Dick  V.  Ireland    621 

Dickerman  v.  Day 212 

Dickinson  v.  Conway 352 

Dickinson  v.  Dickinson 140 

Dickinson  v.  Edwards   ....417,  420 

Dickson  v.  Dickson  400 

Dickson  v.  Frishee    134 

Dickson  v.  Thomas   245 

Dilk  V.  Keighley 44 

Dill  V.  Bowen 71 

Dillon  V.  Allen 178,  179,  196 

Dillon  V.  Anderson   

602,  605,  610,  611 

Dillon  V.  Burnham 69 

Dillon  V.  Russell   393 

Diman  v.  Railroad  Co 600 

Dingley  v.  Oler 594 

Dinsmore  v.  Neuesheimer 258 

Dinsmore  v.  Webber 66 

Disbrough  v.  Bileman 634 

Disbrow  v.  Durand  ......  .458,  460 

Distilling   and    Cattle    Feeding 

Co.  V.  People  320,  323 

District  v.  Dauchy   573 

Ditmas   v.    Sackett    211 

Ditchman  v.  Worall    26 

Dis  V.  Cobb    508 

Dix  V.  Marcy   108 

Dixon  V.   Olmstead 500 

Dixon  V.  Merritt 27,     57 


Sec. 

Dixon  V.   Telegraph   Co 297 

Dixon  County  v.  Beardshear..   456 
Dixon-Wood  Co.  v.  Glass  Co. . .   697 

Doane  v.  Covell   66 

Doane  v.  Lockwood   599 

Dobbin   v.  Hewitt 240 

Dobson  V.  Winner   450 

Dock  V.  Boyd  131 

Dock  Co.  V.  Kinzie 113 

Dodd  V.  Berthal 32 

Dodge  V.  Woolsey   534 

Doe  V.  Burnham 175,  178 

Doherr  v.  The  Etona 410 

Doherty  v.  Doe 80 

Doherty  v.  Hill    92 

Doherty  v.  Shields   486,  489 

Dolan  V.  Green    413 

Dolan  V.  Eodgers   657,  659 

Doles  V.  Hilton 26 

Doll  V.  Noble  614 

Dolman  v.  Cook 241,  243 

Dolph  V.  Hand 52,  55,  56,     59 

Don  V.  Lippman  258,  419 

Donald  v.  Homestead  Asso 114 

Donnell  v.  Bennett   317 

Donellan  v.  Read   82,  137 

Dongan  v.  Blocker    105 

Donovan  v.  Ward 56 

Doolin  V.  Ward 165,  167 

Doolittle    V.    Dininny 79 

Dorecher  v.  Continental  Mills.      62 

Doremus  v.  Hennessey   

335,  341,  342,  344 

Dorsey  v.  Packwood   98 

Dougherty  v.  Bash   125 

Dougherty  v.  Chestnutt 92 

Dougherty  v.  Seymour  274 

Dougherty  v.  Whitehead 458 

Doughty  V.  Doughty 15,  400 

Douglas  Ax  Manuf.  Co.  v.  Gard- 
ner     612 

Douglas  County  v.  Keller 450 

Douglas  V.  Kentucky 273,  547 

Douglass  V.  Chapin    375 

Douglass   V.   Howland 94,     95 

Douglass  V.  Spears   98 


791 


TABLE    OF    CASES. 


Sec. 

Dow  V.  Beidelman   538,  539 

Dow  V.  Clark   356 

Dow  V.  Haley 200 

Dow  V.  Updike 229 

Dow  V.  Warthen    156 

Dowell  V.  Cardwell   526 

Dowling  V.  McKenny 110,  443 

Down  V.  Hailing   505 

Downer  v.  Chesbrough 115 

Downes  v.  Ross   146 

Downey  v.  Hinehman 124 

Downing  v.  Freeman 444 

Downing  v.  Ringer 196 

Downing  v.  Stone  61 

Downs  V.  Finnegan  

464,  486,  489,  490,  492,  493 

Downs  V.  Minchew   200 

Dows  V.  Glaspel   251,  259 

Dows  V.  Perrin 512 

Dows  V.  Sweet 128 

Dowse  V.  Coxe   485 

Doyle  V.  Dixon 134 

Doyle  V.  Ins.  Co 545 

Doyle  V.  Lynn   190 

Doyle  V.  Railroad  Co 295 

Doyle  V.  Trinity  Church 458 

Drady  v.  Railroad  Co 537 

Drake  v.  Flewellen   96 

Drake  v.  Newton Ill 

Drake  v.  Ramsey 56,  59,  65 

Drake  v.  Rice    419 

Drake  v.  Seaman 94 

Drake  v.  Wells    509 

Drake  v.  Whaley 445 

Drake  v.  White   577 

Draper  v.  Randolph 442 

Draughan  v.  Bunting 129 

Dreeman  v.  Douglas   274 

Dresser  v.  Norwood 503 

Drew  V.  Claggett   ; .  482,  599 

Drew  V.  Peer 509 

Drpyer  v.  Goldy 228 

Drinkwater  v.  Jordan 379 

Driscoll  V.  Nichols    485 

Drovers  Nat.  Bank  v.  O'Hare .  .  502 


Sec. 

Drude  v.  Curtis   57 

Drury  v.  Defontaine 180,  187 

Drury  v.  Wolfe 209,  225 

Drury  v.  Young 84 

Dryfus  v.  Burnes 216 

Dry  Goods  Co.  v.  Harlin 171 

Dube  V.  Beauding  64 

Dublin,  etc.  Ry.  Co.  v.  Black..     26 

Ducett  V.  Wolf '. 84 

Duflf  V.  Russell 677 

Dufaur  v.  Assurance  Co 18 

Dugan  V.  Lewis 417 

Dulin  V.  McCaw 401 

Dulin  V.  Price 109 

Dunbar  v.  Johnson   205 

Dunbar  v.  Railroad  Co 290 

Duncan  v.  Baker  474 

Dimcan  v.  Helm    241 

Duncan  v.  Humphries 599 

Duncan  v.  Jandon 358 

Duncan  v.  Railroad  Co 295 

Dunham  v.  Bent   328 

Dunham  v.  Branch   379 

Dunham  v.  Cudlipp    230 

Dunham  v.  Griswold 427 

Dunkin  v.  Hodge 129 

Dunlap  V.  Hand   640,  651 

Dunlap  V.  Lewis   504 

Dunlap  V.  Wiseman 241 

Dunn  V.  Bell    249 

Dunn  V.  People 270,  271 

Dunn  V.  Rothermel   Ill 

Dunn  V.  Sayles 622 

Dunn  V.  Seymour    364 

Dunn  V.  West 129 

Dunsmore  v.  Lyle 102 

Dunton  v.  Brown 27 

Duquette  v.  Richar   443 

Duplex  Saf.  Boiler  Co.  v.  Gar- 
den    614,  639 

Dupuy  V.  Wurtz 632 

Dural  V.  Myers 669 

Durand  v.  Curtis 102 

Durgin  v.  Dyer 175,  178 

Durgin  v.  Express  Co 289 


Y92 


TABLE    OF    CASES. 


See. 

Durfee  v.  O'Brien    82,  137 

Durham,  etc.  Improvement  Co. 

V.  Guthrie   97,  98,  109 

Durham  v.  Hiatt  133 

Durkee  v.  Mott   603 

Durner  v.  Huegin 315 

Durnford  v.  Messiter 340,  430 

Durr  V.  Hervey  513 

Dutton  V.  Aurora  208 

Dutton  V.  Poole 361,  364 

Duvall  V.  Bank 208 

Duvall  V.  Myers 668 

Duval  V.  Wellman 275,  500 

Dwight  V.  Badgley 256 

Dwight  V.  Hamilton   319 

Dyer  v.  Jones 477 

Dykers  v.  Townsend. ..... .90,  142 

Dykes  v.  Bottoms   215 

Eadie  v.  Slimmon 499 

Eagle  V.  Kohn   257 

Earl  V.  Bickford 448 

Earle  v.  Coburn 457 

Earle  v.  Reed 27,  34,     49 

Easp  v.  Tyler 589 

Eastabrook  v,  Ins.  Co 19,     20 

Easter  v.  White 129 

Eastern  Bank  v.  Capron 506 

East  Lewisburg  L.  &  Manuf.Co. 
East   Lewisburg   L.    &   Manuf. 

Co.  V.   Marsh 515 

Eastman  v.  State 200 

Eastman  v.  Wright 377 

Easton   v.   Railroad   Co 325 

East  River  Bank  v.  Hoyt 216 

East  Tennessee,  etc.  R.  R.  Co.  v. 

Staub ;.134,  602 

Eastwood  V.  Kenyon 123,  124 

Eaton  V.  Eaton 6,  9,  21,  22,     25 

Eaton  V.  Hill 67,     69 

Eaton  V.   Kegan 197,   204,  540 

Eaton  V.  Libbey 352 

Eaton  V.  Mclntire 292 

Eaton  V.  Water  Works  Co 349 

Eaton  V.   Whitaker 102,  135 

Eaton  V.  Woolly 640 


Sec. 

Ebey  v.  Adams 520 

Eckel  V.  Renne 267 

Eckeurode  v.   Chemical  Co....   608 

Eckman  v.  Railroad  Co 300 

Eckstein  v.  Downing 674 

Eddy  V.  Capron 279 

Eden    v.    Chaffee 130 

Eden    v.    People T80,  188 

Edgall  V.  McLaughlin 246 

Edge  V.  Edge 8 

Edgecomb  v.  Buckhout 474 

Edgerly  v.    Shaw 51,     52 

Edgerton  v.  Hodge 155 

Edison  P"honograph  Co.  v.  Pike  339 

Edmunds   v.    Bruce 237 

Edmunds   v.    Mister 52 

Edward,  etc.  Oil  Co.  v.  Baker. .   664 

Edwards  v.  Carter 52,     59 

Edwards  v.  Clement 356 

Edwards  County  v.  Jennings..   179 
Edwards   v.   Hardware  Manuf. 

Co 449 

Edwards  v.  Kearzey 528,  555 

557,  5SB,  560 

Edwards  v.  Peterson 515,  518 

Edwards  v.  Railroad  Co..  139,  146 

Edwards  v.  West 577 

Egbert  v.  Baker 406 

Ege  V.  Koontz 449 

Egeleshimer  v.  Van  Antwerp . .   385 

Eggleston  v.  Buck 371 

Eggleston  v.  Wagnor 92 

Ehrgatt  v.  Mayor 271 

Eichelberger  v.  McCauley 146 

Eidmon  v.  Martinez 395 

Eisel  V.  Hayes 312,  314 

Eising  V.   Andrews 635 

Elbert  v.  Gas  Co 85 

Elbinger-Actien-Gesellschaft    v. 

Armstrong 683,  698 

Elder  v.  McClaskey 631 

Elder    v.    Schumacher 9,     22 

Elder  v.  Thompson 308 

Elder  v.   Warfield 96 

Elderton  v.  Emmons 603 


703 


TABLE    OF    CASES. 


See. 

Eldred  v.  Malloy 246 

Eldridge  v.   Rowe 474 

Electric  ElgEt   Co.  v.  Railroad 

Co 676 

Eley  V.  Life  Assur.  Co 360 

Elgie  Cotton  Cases 148 

Elkhart  County  v.   Crary 282 

Ellenbogen  v.  Griffey 227 

Eller  V.  Lacy 368 

Ellerman      v.       Slock      Yards 

Co 304,  312 

Ellicott  V.  Turner 82 

Elliott    V.    Barrett 91 

Elliott  V.  Caldwell..  .477,  640,  655 

Elliott  V.  Horn 30 

Elliot  V.  Ince 25 

Elliott  V.  Railway  Co 555,  642 

Elliott  V.   Sugg 210 

Ellis  V.  Alford 65 

Ellis  V.  Bray 93 

Ellis  V.  Gary 108,  467,  479 

Ellis  V.  Deadman 92 

Ellis  V.  Ellis 469 

Ellis   V.    Hamlen 473 

Ellis  V.  Harrison 352,  362 

Ellis  V.  Murray 125 

Ellis  V.  Railroad  Co 92 

Ellis  V.  Telegraph  Co 297 

Ellis  V.  Thompson 641 

Ellison  V.  Jackson 121 

Ellison  V.  Jackson  Water  Co.  .     93 

Elmore  v.  Kingscott 141 

Elrod  V.  Myers 45 

Elston   V.   Jasper 9,     10 

Elwell  V.  Martin 34 

Embrey   v.   Jemison.  .249,   251,  259 

Emerson  v.  Aultman 94 

Emerson  v.   Carpenter 66 

Emerson  v.   Slater. .  .121,   125,  132 

Emery  v.  Bank 512 

Emery  v.  Burbank 115 

Emery  v.  Candle  Co 320 

Emery  v.  Clough 398 

Emery  v.  Darling 607 

Emery  v.  Emery 491 


Sec. 

Emery  v.  Lawrence 515 

Emery  v.  Ohio  Co 313 

Emery  v.  Smith 82,  110 

Emert  v.   Missouri 551 

Emmons  v.  Elderton 602,  605 

Enders    v.    Enders 274,  277 

Endres  v.  Bank 232 

England  v.  Davidson 281 

England  v.   Garner 27 

England  Trust  Co.  v.  Abhott .  .    674 

Engle  V.  Chipman 279 

Englebert  v.   Troxell ...  40,   42,     43 
50,  57,  63,     69 

English   V.   Smock 208 

Engster  v.  West 573 

Ennis  v.  Palace  Car  Co.  .  .622,  628 

Epperly  v.  Bailey 474 

Epperson  v.  Nugent 43,     49 

Equitable,  etc.  Soc.  v.  Clements  404 
Equitable,  etc.  Society  v.  Red- 
ding     404 

Equitable     Gas    Light    Co.     v. 

Manuf.  Co 107,  108 

Equitable   Life   Assur.    Soc.   v. 

Frommbold 420 

Erdman  v.  Mitchell 336 

Erie  and  Pacific  Despatch  Co. 

V.  Cecil 325 

Erie,  etc.  R.  R.  Co.  v.  Patrick .  .    383 
Erie  Railway  v.  Locomotive  Co.  577 

Erlanger  v.  Phosphate  Co 626 

Erman  v.  Lehman 398 

Ernst   V.    Crosby 274 

Errington    v.    Aynesly 668 

Erskine  v.  Van  Arsdale 456 

Erwin   v.   Nav.   Co 384 

Eslava  v.  Crampton 228 

Espalla    v.    Wilson 114 

Espasito  v.  Bowden 576 

Espin  V.   Pemberton 503 

Estate  of  Kessler 108 

Estate  of   Silver 9 

Essley  v.  Sloan 238 

Estep   V.    Fenton 655 

Estevez  v.  Purdy 228 


794 


TABLE    OF    CASES. 


See. 

Etheridge  v.  Vernoy 524,  526 

Euds  V.   Williams 025 

Eureka  v.  Edwards 56,  71 

European,     etc.     Mail     Co.     v. 

Packet   Co 656 

Eustis   V.    Bolles 531 

Evans    v.    Anderson 258 

Evans  v.  Dravo 331 

Evans   v.    Givens 595,  599 

Evans  v.  Jones 545 

Eans    V.    Hughes 449 

Evans  v.  Miller 105,  464,  490 

Evans  v.  Montgomery 560 

Evans  v.  Morgan 70 

Evans  v.  Railroad  Co 617,  619 

Evans  v.  Winona  Lumber  Co..  Ill 

Evansville    v.    Morris 192,  193 

Everhart  v.  Searle 451 

EveringHam   v.   Meighan 249 

Eversen  v.  Carpenter 54 

Evert  V.  Kleimenhagen 185 

Ewell   V.    Daggs 332,  532 

Ewing  V.  Litchfield 671,  676 

Ewing  V.  Railroad  Co 693 

Ewins  V.  Gordon 98 

Exall  V.  Partridge.  .  .430,  434,  435 

Exchange  Bank  v.  Rice. 356  357,  359 

Exchange  Tel.  Co.  v.  Gregory.  .  341 

Exeter  Nat.  Bank  v.  Orchard .  .  234 

Exley  V.   Berryhill 234 

Ex  parte  Andrews 181 

Ex  parte  Apsey 504 

Ex  parte  Christy 555 

Ex  parte  Crammer 12 

Ex  parte   Fellows 199 

Ex  parte  Hall 526 

Ex  parte  Hayes 544 

Ex  parte  Kuback 4 

Ex  parte  Lee 1 

Ex  parte  Maclure 482 

Ex    parte    Milner 701 

Ex   parte   Newman 181 

Ex    parte    Parker 145 

Ex  parte  Pye 358 

Ex  parte  South 526 


Sec. 

Ex  parte  Taylor 60 

Ex  parte  Unity,  etc.  Asso 70 

Ex  parte  Jentzsch 188 

Express  Co.  v.  Caldwell 288 

289,  296 

Express  Co.  v.  Jackson 616 

Express  Co.  v.  Moon 288 

Express  Co.  v.  Trego 618 

Fagin  v.  Goggin 35 

Fain  v.   Turner 124,   127,  134 

Fairfax   v.    Railroad    Co 424 

Fairly  v.  Wappoo  Mills 198 

Falliard  v.  Wallace 614 

Fanning   v.   Anderson 387,  634 

Fanning  v.  Dunham 216 

Fareira   v.   Gabell 251 

Farina  v.  Howe 152 

Farley  v.  Parker 9,     21 

Farley  v.  Piatt 281 

Farmer  v.  Arundel 450 

Farmers    and    Mech.    Bank    v. 

Kingsley 635 

Farmers'  Bank  v.  Transporta- 
tion Co 289,  290 

Farmers'    Deposit   K.    Bank   v. 

Bank 506 

Farmers'    Nat.    Gold    Bank    v. 

Stover 232 

Farmington  Academy  v.  Allen  458 

Farnam  v.  Brooks 7 

Farnham  v.  Davis 132 

Farnham  v.  Railroad  Co 288 

Farnsworth  v.  Hemmer 451 

Farquhar  v.   Morris 628 

Farrell  v.  Farrell 470 

Farrell  v.  Maxwell 96 

Farson  v.  Louisville 278 

Farwell  v.  Becker 388,  394,  438 

Farwell  v.  Johnston 103 

Farwell   v.    Lowther 98 

FarwelT  v.  Tilson 133 

Faulknor   v.    Hyman 258,406 

Faw  V.  Roberdeau 633 

Fawcett  v.  Cash 622 


Y95 


TABLE    OF    CASES. 


Sec. 

Fawcett  v.  Eberly 281 

FawceFt  v.  Woodbury  County. .   281 

Faxon    v.   Mansfield 474 

Fay  V.  Fay 171,  701 

Fay  V.  State 173 

Fay  V.  Wheeler 140 

Fear  v.  Bartlett 419 

Fearing   v.    Glenn 638 

Fearnley  v.   De  Mandenville . .   330 

Feay  v.  Decamp 599 

Feeel    v.    Gumault 25 

Feeney  v.  Howard 107 

FelcB  V.  Taylor 353 

Feldew  v.  Besley 573 

Fender  v.  Kelly 339,  348 

Feldman  v.  Gamble 204 

Felt  V.  Smith 664 

Felton  V.  Dickinson 361 

Fennell  v.  Ridder 180 

Fenno  v.   Sayre 237 

Fenton  v.  Clark 474,  589 

Ferguson  v.  Bank 148,  513 

Ferguson  v.   Bell 66,     68 

Ferguson  v.  Bobo 67,  69,     70 

Ferguson  v.   Carrington. .  .461,  464 

Ferguson  v.  Clifford 402 

Ferguson  v.  Railroad  Co 27 

Ferguson  v.  Telegr.  Co 692 

Ferrell  v.  Maxwell 129 

Ferris   v.   Water    Co 349,  350 

Ferry  v.   Burchard 635 

Fertilizing       Co.       v.       Hyde 

Park 534,  547 

Fetrow  v.   Wiseman 27 

Fessenden  v.  Mussey 88 

Fessenden  v.  Taft 395 

Feurt  V.  Rowell 402 

Fewings  v.  Tisdale 603 

Fichter  v.  Frank 254 

Ficklin  v.  Shelly  Taxing  Dist.  552 
Fidelity,   etc.   Co.  v.   Lawlor..    129 

Fiedler  v.  Darrin 208 

Field   V.   Brackett 659 

lield  V.  Chipley 283,  517 

Field  V.  Crawford 356 


Sec. 

Field  V.   Herrick 66 

Field  V.  Magaw 526 

Field  V.   Mayor 518 

Field  V.  New  York 515,  526 

Field  V.   Runk 368 

Fielder   v.    Starkin 612 

Fildew  V.  Basley 587 

Files  V.  Railroad  Oo 295 

Fillienk  v.  Armstrong 618 

Fillman  v.  Ryon 455 

Filson  V.  Himes 279 

Finch  V.  Barclay 197 

Finch  V.  Finch 470 

Finch  V.  Mansfield 409 

Finn    v.    Donahue 192,  195 

Finney  v.  Apgar 146 

Finney  v.  Ins.  Co 404 

Fireman's  Ins.  Co.  v.  Thompson  404 

Fish  V.    Chapman 615 

Fish  V.  Stamping  Co 483 

Fishburn  v.  Chicago 304 

Fisher  v.  Bernard 31 

Fisher  v.  Bishop 499 

Fisher  v.  Hopkins 373 

Fisher  v.  Lackey 557 

Fisher  v.  Lord 205,  2^8,  409 

Fisher  v.  Mowbray 27 

Fisher  v.  Otis 115 

Fisher    v.    Shattuck 498 

Fisk  V.  Reser 128 

Fiske    V.    People 4 

First  Nat.  Bank  v.  Allen 428 

First  Nat.  Bank  v.  Bank 427 

First   National   Bank   v.   Chal- 
mers      128 

First  Nat.  Bank  v.  Davis 226 

First  Nat.   Bank  v.  Hendric . .   302 

First  Nat.  Bank  v.  Kelly 511 

First  Nat.  Bank  v.  Kingsley. .    186 

First  Nat.  Bank  v.  Mann 214 

First  Nat.  Bank  v.  Mayor 456 

First  Nat.   Bank  v.  Mitchell .  .   401 
First    Nat.    Bank    v.    Packing 

Co 251,  254 

First  Nat.  Bank  v.  Railroad  Co.  511 


Y96 


TABLE    OF    CASES. 


Sec. 

First  Nat.  Bank  v.  Kowley 352 

First  Nat.  Bank  v.  Schmidt..   510 

First    Nat.    Bank    v.    Shaw 397 

401,  512 
First  Nat.  Bank  v.  Sowles.l59,  160 
First  Nat.  Bank  v.  Walker...  406 
First  Presb.  Church  v.  Bank..  597 
Fitch  V.  Constantine  Hydraulic 

Co 509 

Fitch  V.  Ins.  Co 16 

Fitch  V.  Jones 245 

Fitch   V.   Eemer 241 

Fitehburg      Railroad      Co.      v. 

Depot  Co 541 

Fitehburg  R.  R.  Co.  v.  Gage . .   325 

Fitts  V.   Hall 67 

Fitzgerald  v.   Allen 599,  621 

Fitzgerald  v.  Baker 362 

Fitzgerald  v.   Dressier 123 

Fitzgerald  v.  Ins.  Co 267 

FitzgeraH  v.  Morrissey. .  .121,  123 
125,  128 

Fitzgerald  v.  Reed 9,     22 

Fitzgerald  v.  Stewart 526 

Fitzpatrick  v.   Woodruff 140 

621,  600 

Fivaz   V.    Nicholls 162 

Flaccus  V.  Smith 336 

Flagg    V.    Baldwin 395,408 

Flagg  V.  Gilpin 249 

Flagg  V.  Inhabitants 188 

Flaherty  v.  Minor 699 

Flaherty  v.   Moran 345 

Flanders  v.  Davis 22 

Flandrow  v.   Hammond 595 

Flannery  v.  Rohomayer 652 

Flarity    v.    Odium 283,517 

Fleeter  v.  Weber 427 

Fleischner  v.   Pacific  Post  Tel. 

Co 568 

Fleming  v.  Beck 685 

Fleming  v.  Carter 102 

Flemm  v.  Whitmore 129 

Fletcher   v.   Grower 388,  439 

Fletcher  v.  Harcat 164 


See, 

Fletcher  v.  Ingram 149 

Fletcher  v.  Tayleur 688 

Flight   V.    Ballard 668,669 

Flinn  v.  Barber 480 

Flinn  v.  Railroad  Co 288 

Flint  V.  Cadenasso 352 

Flint  V.  Pierce 356 

Flint  V.  Wood 600 

Flood  V.  Allen 335 

Flood  V.  Jackson 344 

Florence  R.  R.  etc.  Co.  v.  Bank  232 
Florida,  etc.  R.  R.  v.  State...   302 

Flower  v.  Railroad  Co 26 

Flynn  v.  Benefit  Asso 363 

Flynn  v.  Ins.  Co 363 

Fonda  v.  VanHorne   27 

Folds  V.  Allardt 60 

Foley  V.  Bushway 485 

Foley  V.  Phelps 485 

Follett  V.  Buyer 507 

Fonseca  v.  Steamboat  Co 288 

295,  395 

Fontaine  V.  Bush 114,  145 

Foot  V.  Merrill 492 

Forbes  v.  Appleton 452,  501 

Forbes  v.  Railroad  Co 510 

Force  v.  Haines 458 

Ford  V.  Beech 376 

Ford  V.  Cotesworth 573 

Ford  V.  Ins.  Co 404 

Ford  V.  Milk  Shippers  Asso..   320 

323 

Ford  V.  Tiley 594 

Ford  V.   Ward 458 

Ford  V.  Williams 359 

i'ordyce  v.  Nelson 524 

Forest  M.   E.   Church  v.   Don- 

nell 385 

Forester  v.  Fuller 11 

Formby  v.  Proyer 287 

Forrester  v.  Flores 104 

i  orscht  V.  Green 502 

Forsyth   v.    Mann 694 

Forsyth  v.  Wells 492 

Forsyth  v.  Whaling 628 


Y97 


TABLE    OF    CASES. 


Sec. 

Forst  V.  Leonard 368 

Fortesque  v.   Hannah 466,  467 

Forth  V.  Stanton 121 

Fort  Plain  Bridge  v.  Smith ...   535 

Farward   v.   Pittard 581 

Foshay    v.    Ferguson 498 

Foss  V.  Cummins 250,  304 

Foster  v.  Bartlett 496 

Foster  v.   Blackstone 508 

Foster    v.    Burton 434 

Foster  v.  Coekerell 508 

Foster    v.    Commissioners 544 

Foster   v.    Fuller 485 

Foster  v.  Green 504 

Foster   v.    Hooper 371 

Foster  v.  Kirby 450 

Foster  v.  Maginnis 105 

Foster  v.  MeO'Blennis 134 

Foster  v.  Protective  Asso 336 

Foster  v.  Ropes 149 

Foster  v.  Taylor 196,  205 

Foster  v.  Thurston 205 

Foster  v.  Water  Co 349 

Foster  v.  Wooten 185 

Fourth    Nat.    Bank    v.    Frank- 

lyn 556,  565 

Fowle  V.    Park 304,  312 

Fowler  v.  Armour 603 

Fowler  v.  Burget 100 

Fowler  v.   Donovan 388,  436 

Fowler  v.  Ins.  Co 266 

Fowler  v.  Trust  Co.. 208,  211,  225 
228,  229 

Fowler  v.  Water  Works  Co 349 

T'owler    Elevator    Co.    v.    Cot- 

trell 85,     86 

Fowler's    Appeal 398 

Fox  v.  Drewry 64 

Fox    V.    Harding 684,  697 

Fox  V.  Matthews 116 

Fox  V.  Tabel 596 

Frances  v.  Barry 92 

Francis  v.   Telegr,   Co 693 

Frain   v.    Turner 134 

Frank  v.  Banlc 428 


Sec. 

Frank  v.  Bobbitt 406 

Frank  v.  Eltringham 88 

Franchat   v.    Leach 594,  606 

Franker  v.   Little 450 

Franklin  v.  Long 139 

Franklin  v.  Miller 595 

Franklin  Coal  Co.  v.  McMillan  492 
Franklin  L.  Ins.  Co.  v,  Hazzard  267 
Franklin  Tel.  Co.  v.  Harrison .  .   672 

Frary  v.  Rubber  Co 614 

Fratt  V.   Clark .487,  489 

Frazier  v.  Clark 687 

Frazier  v.  Fredericks 406 

Frazier  v.  Massey 27 

I'reden  v.  Richards 230 

Frederick  v.  Railroad  Co.  .292,  293 

FredericE  v.  Williams 631 

Fred  Miller  Brewing  Co.  v.  De 

France 413 

Fredericks    v.    Mayer 677 

Freeman  v.   Bridger 39 

Freeman  v.  Clute 697 

Freeman  v.  Cooke 428 

Freeman  v.  Foss 108 

Freeman  v.  Freeman..  15,  105,  106 
Freeman  v.  Railroad  Co... 339,  348 

Freeman's  Appeal 401 

Freese   v.    Brownell 399,417 

Freeth  v.  Burr 595 

French  v.  Grindle 212 

French    v.    McAndrew 27,     57 

French   v.   Parker 319 

French    v.    Smith 425 

Fiench  v.  Townes 571 

Friend,  etc.  Lum.  Co.  v.  Miller  685 

Frierson  v.  Williams 401 

Frinlv  v.  Green 379 

Frisbie  v.  United   Slates.  ..  .1,  540 

Frisby  v.  Parkhurst 667 

Fritsch  v.  Heislem 185 

Frolickstein  v.  Mobile 181 

Frome  v.  Dawson 104 

Frorer  v.  People   4,  515,  540 

Frost  V.  "Belmont 284 

Frost  V.  Gage 357 


798 


TABLE    OF    CASES. 


See. 

Frost    V.    Knight 594,  604 

Frost    V.    Tarr 466,  627 

Frost  V.   Vaught 31 

Frost  V.  Williams 383 

Frostburg  Mining  Co.  v.  Glass 

Co 152 

Frothingham   v.    Morse 278 

Friiitt  V.  Anderson.  .■ 11 

Fry  V.  Piatt 91 

Fuchs  V.  Fucks 467 

Fulford  V.  Keerl 238 

Fuller  V.  Abrahams 166 

Fuller  V.  Brown 4Y5,  589 

Fuller  V.  Dame 302 

Fuller  V.  Davis 286 

Fuller  V.  Dawe 274 

Fuller  V.  Duren 446,  486 

Fuller  V.  Hope 314,  316 

Fuller  V.  Little 605 

Fuller  V.  Mowry 460 

Fuller   V.    Relief   Asso 300 

Fuller  V.  Scott 128 

Fullman  v.  Adams 123 

Furbish  v.  Goodnow 130 

Furlong  v.   Bartlett 60 

Furman   v.    Van    Sise 47,  470 

Fuqua  v.  Sholem 28 

Furstenheim  v.   Railroad  Co .  .  294 

Gabel  v.   Houston 181 

Gaffney   v.    Hayden 62,  482 

Gage   V.    Allen 452 

Gaines  v.  Hot  Springs 628 

Gaines   v.   Miller 624 

Gaither   v.    Clarke.  .  .209,    231,237 

Gaither  v.  Lindsey 200 

Gaitskill  v.  Chenaelt :  . . .  339 

Gale  V.  Harp 121 

Gale  V.  Leckie 164 

Gallagher  v.  Gallagher 103 

Gallagher  v.  Nichols 656 

Gallaher   v.    Sharpless 699 

Galler  v.   Fett 492 

Gallin  v.  Railway  Co 295 

Gallini  v.  Eaborie 203 


Sec. 

Gallious  V.  Pierce 278 

Galton  V.  Emuss 165 

Galveston,    etc.    R.    R.    Co.    v. 

Pfeuffer 302 

Galvin  v.  Kenneth 149,  151 

Ualway  v.  Railroad  Co 625 

Galway  v.  Shields lOl,  102,  480 

Gamewell  Fire  Alarm  Tel.  Co. 

V.  Crane 312,  313 

Gammon  v.  Butler 504 

Gandell  v.  Pontigney 603 

Gantly  v.  Ewing 555 

Gapen   v.   Gapen 668 

Garber  v.  Armentrout 440 

Garbracht  v.   Commonwealth .  .  398 

Gardels    v.    Kloke 97 

Garden  City  Sand  Co  v.  Miller  403 

Gardner  v.  Gardner 80 

Gardner  v.  Lane 568 

Gardner  v.  Morse 165 

Gardner   v.    Smith 524,  526 

Gardner  v.  Tatum 200 

Garfield  v.   Huls 640 

Garfield  v.  Paris 147 

Garland    v.    Dover 47,  470 

Garland  v.  Harrington 515 

Garland    v.    Richeson 508 

Garnett  v.  Handley 364 

Garnett  v.  Roper 387 

Garrett  v.   Burleson 600 

Garrett  v.    Moss 169 

Garrett  v.  Taylor 341,  312 

Garretson  v.  Joseph 449 

Garrigan  v.  Knight 456 

Garton   v.    Railway   Co 325 

Gartrell  v.  Stafford 98 

Gartside  v.   Isherwood 7 

Garvey  v.   Crouch 128 

Garvin    v.    Lenton 208,233 

Gary  v.  James 465 

Gas    Company    v.     San     Fran- 
cisco     459 

Gaskins  v.  Davis 492 

Gas  Light  Co.  v.   Colliday 307 

Gas  Light  Co.  v.  Memphis ....  459 


'00 


TABLE    OF    CASES. 


Sec. 

Gaslin  v.  Pinney 145 

Gassett  v.  Glazier 599 

Gastenan    v.    Commonwealth . .   544 

Gaston  v.  Drake 279 

Gates  V.  Gaither 403 

Gates  V.  Green 573 

Gates  V.  McKee 94 

Gathings    v.    Williams 13 

Gatlin  v.  Wilcox 595 

Gaul  V.  Willis 212 

Gault  V.  Stormout 91 

Gauthier  v.  Cole 412 

Gautzert  v.  Hoge 363 

Gavin    v.    Burton 33 

Gaw  V.  Bennett 256 

Gay  V.   Ballou 49 

Gay  V.  Hassam 637 

Gay  V.  Ins.  Co 18 

Gay  lord  v.  Sorageu 409,  447 

Gee  V.  Railroad  Co 683,  684 

Geer  v.  School   Dist 382 

Geipel  v.  Smith 615 

Geismer  v.  Railroad  Co 615 

Geist's   Appeal 521 

Gelpcke  v.  Dubuque.  .224,  241,  531 

Generaux  v.   Sibley 29,     48 

Gennett    v.    Wuestner 183,  192 

Genoa  v.  Woodneff 241 

George  v.  East  Tenn.  C.  Co. . .   317 

George  v.  Hoskins 129 

George  v.  Security  Co 211 

Georgia  Banking  Co.  v.  Smith.   534 

539 
Georgia  R.  R.  Co.  v.  Hayden..   697 

Gere  v.  Clark 371,  372 

Gerhart  v.  Peck 99 

German    Sav.    and   L.   Asso.   v. 

De  Lashmutt 12 

Gerz    V.    Demarra 460 

Getty  V.  Binsse 374 

Gibben  v.  Maxwell 9,     14 

Gibbons   v.   Rente 383,   384,  608 

Gibbons  v.  Gouverneur.  .  .  .2i)2,  203 

Gibbons  v.  Grinell 383,  385 

Gibbons  v.   Ogden 550 


Sec. 

Gibbs  V.  Blanchard 122 

Gibbs  V.  Bryant 434,  442 

Gibbs  V.  Gas  Co.  .246,  303,  305,  313 
314,  324 

Gibbs  V.  Ins.  Co 404 

Gibbs   V   Smith 165,    169,  324 

Gibbs,     etc.     Manuf.      Co.     v. 

Brucker 185 

Giblan  v.  Laborers'  Union....   335 

Gibson  v.  Carnage 614 

Gibson  v.  CarrutTiers 519 

Gibson   v.   Cook 521 

Gibson  v.  Holland 116 

Gibson  v.   Ins.   Co TOl,  404 

Gibson  v.  Jeyes 12 

Gibson  v.  Pelkie 571 

Gibson  v.  Soper..6,  21,  22,  23,     64 

Gibson  v.   Stearnes 233 

Gibson   v.    Stevens 513,  514 

Gibson  v.  Trust  Co 367 

Gieske    v.    Anderson 367 

Gifford  V.   Corrigan .  .  352,   353,  362 

Giles  V.   Edwards 448,  595,  599 

Gill  V.   Bicknell 87 

Gill  V.  Hewitt 87 

Gill    V.    Vogler 474,  666 

Gillenevatu  v.  Railroad  Co....   295 

Gillenwaters  v.  Campbell 68 

Gillespie    v.    Bailey 56,     64 

Gillespie   Tool   Co.   v.    Wilson.. 474 

666 

Gilles  V.  Tel.  Co 296 

Gillett   V.   Maynard 108,  480 

Gillette  v.  Hartford 456 

Gillette  V.  Tucker 628 

Gilley   v.    Gilley 30,    47,470 

Gilliland  v.  Phillips 416 

Gillis  V.  Space 686 

Gillis  V.  Stinchfieid 531 

Gillis  V.  Telegraph  Co 297 

Gillispie  v.  Nabors 37 

Gillispie  v.  Railroad  Co 582 

Gilman  v.   Courtney 645 

Gilinan  v.  Daught 312 

Gilman  v.  Dwight 319 


800 


TABLE    OF    CASES. 


Sec. 

Oilman    v.    Hall 477,  640 

Oilman  v.   Hill 143,  149 

Gilmore  v.  Bissell 225 

Gilmore   v.    Courfney 643 

Gilmore  v.  Lewis 281 

Gilmore    v.    Wilbur 446,464 

487,  488 

Gilmore  v.  Woodcock 461 

Gilson   V.    Spear 67,     70 

Gimbel  v.   Stalte 561 

Ginn  v.  Security  Co 228 

Gipps  Brewing  Co.  v.  De  France  205 
Girard    Storage    Co.    v.    South- 
ward Co 538 

Gist  V.    Smith 443 

Gist  V.  Tel.  Co 408,  413 

Gitchell  V.  Maney 521 

Glacius   V.    Black.473,  639,  640,  666 
Glamorgan   Coal    Co.   v.    South 
Wales  Miners'  Federation .  .  .    335 

Glanville  v.  Jennings 275 

Glass  Co.  V.  Binney 344 

Glascock    V.    Hazell 446 

Glasscock  v.  Hamilton 388 

Glasscock  v.  Lyons 445 

Gleason  v.   Burke 208,  231,  235 

Gleason    v.    Fitzgerald 130 

Gleason  v.   Smith 640,  651,  666 

Gleason  v.  United  States 588 

Glencoe  Sand  Co.  v.  Hudson... 341 

343 

Glendon  Iron  Co.  v.  Uhler 345 

Glenn  v.  Jackson 585 

Glenn  v.   Savage 457 

Glenn  v.   Shannon 450 

Gloss  V.  Hurlbert.91,  102,.  104,   105 
Gloucester,    etc.    Co.   v.    Russia 

Cement  Co 329 

Glover   v.    Cheatham 184,  185 

Glover  v.  Ott 41 

Glyn  V.  Baker 503 

Godcharles   v.    Wigeman .  .  2,   4,  540 

Goddard   v.    Binney 146,  694 

Goddard   v.    Danaha 104 

Goddard  v.   Sawyer 403,  456 


Sec. 

Godman    v.    Meixel 254 

Goldman  v.  Oppenheim 165 

Gold  Mining  Co.  v.  Bank 17a 

GoldsmitH    v.    Bruning.  .  .  .275,  500 

Gonzoles   v.    Chartier 133 

Good  V.  Cheesman 700 

Good    V.    Deland 328 

Goode   V.   Elliott 244,   245,  262 

Goodlander  Mill  Co.  v.  Stand- 
ard Oil   Co 348 

Goodman  v.  Griffiths 141,  464 

Goodman  v.   Harvey 512 

Goodman  v.   Henderson 312 

Goodman  v.  Pocock 603,  688 

Goodman  v.  Simonda 512 

Goodman  v.  Winter 71 

Goodnow    v.     Empire     Lumber 

Co 55,     59 

Goodnow  V.  Smith 376 

Goodnow  V.  Stryker 632 

Goodrich   v.    Association 219 

Goodrich  v.  Reynolds 208 

Goodrich  v.  Tenny 330 

Goodsell  v.  Myers 65 

Goodspeed  v.  Fuller 448 

Goodwin  v.  Bishop 216 

Goodwin  v.  Cunningham 507 

Goodwin  v.   Frances 85 

Goodwin  v.   Gilbert 79,  353 

Goodwin  Gas  Stove's  Appeal .  .   674 

Goodyear  v.  Adams 9 

Gompers   v.   Rochester 322 

Gompertz   v.   Denton 448,  496 

Gondon  v.  Railroad  Co 642 

Gordon  v.  Avery 91 

Gordon    v.    Bank 393 

Gordon  v.  Brewster 603 

Gordon   v.   Little 136 

Gordon    v.    Potter 47,  470 

Gordon   v.   Rimmington 581 

Gordon    v.    Simonton 596 

Gore   V.   Gibson 7,   9,  472 

Gorham    v.    Dodge 102,  104 

Gorman  v.  Railroad  Co 536 

Gornsey  v.  Rogers 354 


801 


TABLE    OF    CASES. 


Sec. 

Goss  V.  Ellison 379 

Goss  V.  Nugent 81 

Gottschalk  v.  Smith 445 

Gotwaet  v.  Neal 500 

Gough  V.   Edelen 149 

Gough  V.  Findon 427 

Gould  V.  Banking  Co 105 

Gould  V.  Gould 377 

Gould  V.  Murch 572 

Gove  V.  Riddleford 667 

Governor  v.  Art  Union 271 

Gowen  v.  Klous 90 

Grace   v.    Adams 288 

Grace  v.  Denison 93 

Grace  v.  Hale 44,  468 

Grace  v.   Lynch 137 

Gracone   v.    Wroughton 279 

Graff ty  v.  Rushville 551 

Graft  V.  Loucks 107 

Grafton  v.  Cummings. .  .86,  88,     91 

Graham  v.  Holloway 482,  597 

Graham  v.   Selover 634 

Graham   v.   Wickham 465 

Grain  v.  AIdrich.521,  522,  524,  525 
Grand  United  Order  v.  Merklin  231 

Granger  v.   Granger 629 

Granite   State  Provident  Asso- 
ciation v.  Monk 219 

Grannis  v.  Quintain 653 

Grans  v.  Hunter 503 

Grant  v.   Beard 355 

Grant  v.  Ludlow 518 

Grant    v.    McGratli 185,  192 

Grant    v.    Naylor 159,  160 

Grant   v.    Wolf T22,  125 

Grape  Creek  Coal  Co.  v.  Spell- 
man  668,  676 

Gratoit  v.  Railway  Co 198 

Graves    v.    Johnson 164,  398 

409,  415 

Graves  v.   White 482 

Gray  v.  Bennett 423 

Gray  v.  Building  Trades  Coun- 
cil      341 

Gray  v.  Davis 151 


See. 

Gray  v.   Gas  Light  Co 438 

Gray  v.   Garrison 518 

Gray  v.  Green 594 

Gray  v.  Hill 480 

Gray  v.  Hook 279 

Gray  v.  Iron  Works 398 

Gray  v.  Mathias 274 

Gray    v.    Murray 475,589 

Gay  V.   Reynolds 163 

Gray  v.  Tel.  Co 421 

Gray  v.   Pearson 367 

Gray  v.  Van  Blarcom 228 

Great    Western    R.    R.    Co.    v. 

Redmayer 684 

Great  Western  Railway  Co.  v. 

Sutton 325 

Great  Western  Tel.  Co.  v.  Purdy  638 

Grebert  v.   Borgnis 683 

Grebert-Borgnis  v.  Nugent....   698 

Green  v.  Biddle 560,  566 

Green  v.  Bulton 344,  346 

Green    v.    Collins 409,447 

Green   v.    Cresswell 123,  129 

Green    v.    Gilbert 475,  589 

Green  v.  Green 64,     71 

Green    v.    GreenBank 68,     69 

Green  v.  Hadfield 127 

Green  v.  Iron  Works 406 

Green    v.    Moffet 540 

Green  v.  Railway  Co 676 

Green    v.    Salmon 485 

Green  v.  Scranage 499 

Green   v.    Stobo 567 

Green  v.  Van  Buskirk 402,  407 

Green  v.  Willing 26 

Greene    v.    Bartholomew 515 

Greene   v.   Burton 125 

Greene  v.  Godfrey 195 

Greene  v.  Greene 5 

Greene  v.  Latham 132 

Greene    v.    Tyler 237 

Greenfield  v,  Monaghan 236 

Greenfield  School  Dist.  v.  Bank  504 

Greenhill  v.  Ins.  Co 32 

Greentree  v.  Rosenstoek 508 


802 


TABLE    OF    CASES. 


Sec. 

Greenwell   v.   Greenwell 460 

Greenwood    v.    Butler 555,  560 

Greenwood    v.    Curtis 408 

Greenwood  v.  Freight  Co 541 

Greenwood  v.  Law 144 

Greenwood  v.  Strainer 135 

Greesemer  v.  Ins.  Co 420 

Gregory    v.    Brunswick.  ..  .341,  342 

Gregory  v.  Ingwersen 668 

Gregory  v.  Lee 49,     57 

Gregory    v.    Mighell 102 

Gregory    v.    Spicker 312 

Gregory  v.   Wendell .  .  245,   249,  255 

Gregory   v.    Williams 360 

Gressell  v.  Robinson 431 

Greton  v.   Smith 480 

Grew  V.   Produce   Exchange .  .  .    249 

Gribben    v.    Maxwell 22,     25 

Griesemer   v.    Ins.   Co 396,  404 

Griffin  v.  Clay  County 281 

Griffin  v.   Colver 683,   688,  697 

Griffin  v.   Thomas 382 

Griffith  V.  Schwendenman 27 

Griffith  V.  Townley 453 

Griffith  V.  Wells.  .178,  196,  197,  205 

Griffiths   V.    Dudley 288,299 

Grim   v.    Iron    Co 357 

Grimes   v.   Hamilton   County.  .      83 

Grimm  v.  Warner 319 

Grimston  v.   Cunningham 677 

Grindle  v.  Express  Co 290 

Grinnell    v.    Kiralfy 614 

Grinnell  v.   Telegraph   Co 297 

Grissell    v.    Railroad    Co 537 

Griswold  v.  Butler 12 

Griswold  v.  Railroad   Co.. 295,  519 

Griswold    v.    Waddington 15 

Griswood  v.  Bane 255,  257 

Groff  V.  Ramsey 99 

Grogan  v.  Express  Co 288 

Gross  V.   Coffey 222 

Gross    V.    Davis 391 

Gross  V.  Jordan 116 

Gross  V.   Mort.   Co 532 

Grover  v.    Dubois 87 


See. 

Grover    v.    Wakeman 170 

Groynne   v.   Tel.   Co 298 

Grubb  V.  Sharkey 107 

Grubb  V.  Wysor 508 

Grubbs  v.  Harris 561 

Grymer   v.    Sanders 596,  600 

Gubbins  v.  Lautenschlager .  .  .  .   653 

Guetzkow  V.  Andrews 698 

Guggenheimer    v.    Grieszler...   228 

Guild  V.   Bank 232 

Guild    V.    Conrad 96,  129 

Guild    V.    Hull 6 

Guignon  v.  Trust  Co 403 

Gulf,  etc.  R.  .  Co.  V.  McGowan  295 
Gulf,  etc.  R.  R.  Co.  v.  Morris .  .   304 

Gulick  V.  Ward 167 

Gullich  V.  Alford 595 

Gump  V.  HalberstaJt 125 

Gunnison  v.   Gregg 237 

Gunn  V.   Barry 548,  555,  562 

Gunter  v.  Astor 344 

Gunter   v.   Halsey 104 

Gunter  v.   Leckey. .  ." 173 

Gurney  v.  Behrend 512 

Gurney   v.    Womersley 448 

Gurwald  v.  Hahn 662 

Guthrie   v.   Anderson 97 

Guthrie    v.    Morris 49 

Gwathney  v.  Cason 87 

Haacke  v.  Literary  Club 192 

Haas  V.  Railroad  Co 615 

Hackett   v.    Hackett 485 

Hackett  v.   King 498 

Hadd  V.  Express  Co 290 

Hade  v.  McVay 506 

Hadley  v.  Baxendale.  .297,  683,  685 
688,  696,  697 

Hadley   v.    Clarke 576 

Haebler   v.   Myers 445 

Hagadore  v.  Stronach 121 

Hagar  v.  Reclamation  Dist.  .  .  .   278 

HagelTn    v.    Wacks 80 

Hagerty  v.  Nashua  Lock  Co .  .     62 
Hague    V.    Wheeler 345 


803 


TABLE    OF    CASES. 


Sec. 

Hahn   v.    Concordia   Soc 677 

Hahn   v.    Fredericks 148 

Haigh   V.    Blythe 82 

Haine    v.    Meyer 660 

Haines    v.    Thompson 134 

Hainey  v.   Lewis 287 

Haisten  v.  Savannah,  etc.  R.  R. 

Co 668 

Halbrook  v.  Armstrong 137 

Halderman  v.   Duncan 148 

Haldeman  v.  Ins.  Co 229 

Haldeman  v.  Simonton 319 

Hale    V.    Brown 6 

Hale  V.  Gerrish 51 

Hale  V.  Hale.. 86,  91,  104,  105,  467 

Hale  V.  STavigation  Co 421,  580 

Hale  V.  Spaulding   375 

Hale  V.  Steam  Nav.  Co 420 

Hales  V.   Freeman 431 

Hall  V.  Alfred 132 

Hall  V.  Bishop 199 

Hall  V.   Buffalo 518 

Hall  V.  Butterfield 62 

Hall  V.  Cordell 115,  420 

Hall  V.  Denckla 625 

Hall    V.    Finch 460 

Hall  V.  Gray 375 

Hall  V.  Huntoon 361 

Hall  V.  Jones 51 

Hall   V.    Lane 348 

Hall  V.  Leigh   382 

Hall  V.  Mandlin 228 

Hall  V.  Renfro 615 

Hall  V.  State 426 

Hall  V.  Parker 193 

Hall  V.  Potter 275 

Hall  V.  Wallace 99 

Hall  V.  Weir 47,  470 

Hall   V.   Wright 476 

Halleck  v.  Mixer 464 

Hallenback  v  Cockran 154 

Hallett   V.    Novion 175,   178 

Halley  v.  Anness 668 

Halley  v.  Troester 21 

Hallgarten   v.   Oldham 116 


Sec. 

Halliman  v.  Rogers 388 

Halloway  v.   Talbot 602,  605 

Haltham   v.   Ryland 588 

Hamill  v.  Hall 131 

Hamilton  v.   Austin 189 

Hamilton  v.  County  Court....    540 

Hamilton  v.  Harvey 667 

Hamilton   v.    Magill 683 

Hamilton    v.    McPherson.  .602,  605 

Hamilton  v.   Rogers 515 

Hamilton     Gas     Light    Co.    v. 

Hamilton   City 534 

Hamlet    v.    Richardson 501 

Hamlyn  v.    Talisker   Distillery 

396,  420 

Hammer  v.   Schoenf elder 685 

Hammersley  v.  De  Biel 465 

Hammond   v.    Bessey, 685 

Hammons   v.    Slate 188 

Hampden    v.    Walsh 244 

Hampton    v.    France 632 

Hampton    v.    Westcott 5 

Hanchett   v.   Jordan 185 

Hancock  v.  Hazzard 584 

Hancock   v.   Merrick 470 

Hancock  v.  Yaden 1,2 

Hand  v.  Pub.  Co 186 

Handforth   v.   Jackson 312 

Handley  v.  Harris 402 

Hands  v.   Slaney 40,  50,  468 

Handy    v.    Brown 519 

Handy  v.  Publishing  Co 416 

Haney  v.  Caldwell 619 

Hanford  v.   Paine 406 

Hanks    v.    Nagles 274 

Hanly  v.  Blackford 92 

Hanly  v.  Kansas  City,  etc.  R. 

R 182 

Hann  v.  Dekater 234 

Hanna   v.  Andrews    319 

Hanna  v.  Ingram   254 

Hannah  v.  Fife 324 

Hannibal   v.   Telephone   Co....    198 
Hanover  Nat.  Bank  v.  Blake.  .    171 
172,  701 


804 


TABLE    OF    CASES. 


Sec. 
Hanover  Nat.  Bank  v.  Howell.  .    401 

Hansell  v.  Erickson 474 

Hanser  v.   Sane 460 

Hanson  v.  Armitage   152 

Hanson  v.  Marsh 139 

Harbele  v.  O'Day 124 

Hapgood  V.   Houghton    485 

Hapgood  V.  Shaw    474 

Harbison  v.  Knoxville  Iron  Co.       2 

Harhoard  v.  Cooper    518 

Hardeman  v.  Donovan    558 

Harding  v.  Am.  Glucose  Co.  .  .  .    323 

Harding  v.  Cowing 278,  529 

Hardman  v.  Booth 457 

Hardy  v.   Bank    428 

Hardy   Implement   Co.   v.    Iron 

Works 519 

Hargrave  v.  Adcock 90 

Hargraves  v.  Cooke 93 

Hargreaves  v.   Parsons.  ...  124,   129 

Harland  v.  Lilienthal   199 

Harmer  v.  Cornelius   618 

Harmer  v.  Killing 52 

Harmon  v.   Reeve 138,   139,  141 

Harmony  v.  Bingham   665 

Harner  v.  Dipple 26,     27 

Harp  V.  Osgood   129 

Harper    v.  Ely 224 

Harper  v.  Fairley   634 

Harralson     v.  Barrett   452 

Harrell  v.  De  Normandie 571 

Harriman  v.  Harriman 379 

Harrington    v.  Crawford 286 

Harrington  v.  Dock  Co 204,  274 

Harrington  v.  Iron  Works .... 

475,  589,  591 

Harrington  v.  Railroad  Co.  .  .  .    134 

Harrington  v.  Rich 120 

Harris  v.  Bradley 513,  514 

Harris  v.  Currier 460 

Harris  v.  Frank   114,  125 

Harris  v.  Harper   80 

Harris  v.  Harris    400 

Harris  v.  Huntbach 96 

Harris  v.  Lee 48,  469 


Sec, 

Harris  v.  McCormick   362 

Harris  v.  McGoverns 629 

Harris  v.  Roberts 302 

Harris  v.  Roof   284 

Harris  v.  Ross 58,     66 

Harris  v.  Runnels.  173,  175, 178,  199 

Harris  v.  Sharpless 639 

Harris  v.  Telegraph  Co 297 

Harris  v.  Trickett 664 

Harris  v.  Wall   65 

Harris  v.  White   262,  265 

Harris  v.  Wicks 216 

Harrisburg      Lumber      Co.      v. 

Washburn   664 

Harrison  v.  Bank 508 

Harrison  v.  Burnes 62 

Harrison  v.  Close 379 

Harrison  v.  Colton 192 

Harrison  v.  Fane 41 

Harrison  v.  Gibson 626 

Harrison  v.  Harrison 103 

Harrison  v.  Hicks 430 

Harrison  v.  Maynard 339 

Harrison  v.  Railroad  Co 573 

Harrison  v.  Sawtel 12^,  129 

Harrison  v.  State 200 

Harrison  v.  Sterry 406,  407 

Harrison  v.  Willis 530 

Harrison   Mach.   Works   v.    Co- 

quillard   502 

Harrod  v.  Myers 57 

Harsfield  v.  Converse   612 

Harsinger  v.  Newman 128 

Hart  V.  Aldridge 344 

Hart  V.  Bush    152 

Hart  V.  Gregg 520 

Hart  V.  Hart   614 

Hart  V.  Kip    632 

Hart  V.  Machine  Co 398 

Hart  V.  Haney   443 

Hart  V.  Prater 41 

Hart  V.  Railroad  Co 536 

Hart  V.  Saftley   152 

Hart  V.  Telegraph  Co 297 

Hartford  Fire  Ins.  Co  v.  Rail- 


805 


TABLE    OF    CASES. 


See. 

road   Co 332 

Hartley  v.  Cummings   317 

Hartley  v.  Tapley   515 

Hartley  v.  Varner    122,   125 

Hartley  v.  Wharton    65 

Hartman  v.  Ins.  Co 16 

Hartman  v.  Meighan 666 

Hartness    v.    Thompson.  ..  .66,  387 

Hartranft  v.  Uhlinger    209 

Harvey  v.  Briggs    64,     68 

Harvey  v.  Coffin 660 

Harvey  v.  Gibbons 568 

Harvey  v.  Hunt 171,  701 

Harvey  v.  Locomotive  Works.  .   402 

Harvey  v.  Merrill 246,  249,  251 

Harvester    Co.    v.    Meinhardt..    344 

Harwood  v.  Roberts 368 

Haskins  v.  Royston 341,  342 

Haskinson  v.  Eliot   371 

Haslaek  v.  Mayers 599 

Hassard  v.  Rowe   39 

Hastings  v.  Dollarhide    .  .  .  .51,     66 

Hastings  v.  Wiswall   242 

Hatch  V.  Douglas   248,  252 

Hatch  V.  Hatch 52 

Hatch  V.  Ins.  Co 16 

Hatch  V.  Oil  Co 148 

Hatcher  v.  Hall   626 

Hathaway  v.  Hagan   206 

Hathaway  v.  Moran 179,  416 

Hathaway     v.     The     Brantford 

City 410 

Hatsall  V.  Griffith 377 

Hattin  v.  Chase  .  .  .  650,  651,  652 
653,  655,  664 

Hatzfield  v.  Gulden 284,  287 

Haugh  V.  Blythe 134 

Haven  v.  Railroad  Co 509 

Havens  v.  Lathene   584 

Hawes  v.  Railroad  Co 63,     64 

Hawker  v.  Moore   390,  392 

Hawkes  v.  Phillips 128 

Hawkes  v.  Saunders   485 

Hawkins  v.  Asssociation   219 

Hawkins  v.   Ball    590 


See. 

Hawkins  v.  Barney   559 

Hawley  v.  Beverley 431 

Hawley  v.  Bibb   395,  408 

Hawley  v.  Bristol 515,  519 

Hawley  v.  Harran   427 

Hawley  v.  Kountze   214 

Hawley  v.  Moody 102,  480 

Haworth  v.  Huling 225 

Haworth  v.  Montgomery   200 

Hawralty  v.  Warren 669 

Hax  V.  Acme,  etc.  Plaster  Co..  .    515 

Haxton  v.  Bishop 506 

Hay  V.  Miller   6 

Hayden   v.    Weldon 128 

Haydock  v.  Coope   170 

Hayes  v.  Jackson   93,     94 

Hayes  v.  McConnell 460 

Hayes  v.  Parker   67,     70 

Hayes  v.  Railroad  Co. 203,  301,  306 

Haynes  v.  Churcli   575 

Haynes  v.  Rudd 500 

Hays  V.  Turner    585 

Hayward  v.  Bank   626 

Hayward  v.  Leonard 

473,  477,  640,  666 

Hazar  v.  Reclamation  Dist.  .  .  .    529 

Hazard  v.  Ins.  Co 450,  571 

Hazard  v.  Irwin 635 

Hazel  v.  Railroad  Co 410,  421 

Hazelton  v.  Week    492 

Hazen  v.  Bearden    126 

Head  v.  Goodwin 138 

Head  V.  Railroad  Co 293 

Head  v.   Tattersall    613 

Healey  v.  Scofield   438 

Healy  v.  United  States 452 

Heard  v.  James   492 

Heard  v.  State   188 

Hearn  v.  Cullin 340,  430 

Hearst  v.  Hite   458 

Heath  v.  Flannery 653 

Heath  v.  Heath   134 

Heaver  v.  Lanahan   608 

Heavilon  v.  Kramer 687 

Hecht  V.  Caughron 352 


806 


TABLE    OF    CASES. 


Sec. 

Heckman  v.  Swarts 498 

Hedderly  v.  Downs   371 

Hedge  v.  Lowe  319 

Hedges  v.  Fries    682 

Heebner  v.  Ins.  Co 404 

Heffron  v.  Arnsly 99 

Heffron  v.  Brown 460 

Hefter  v.  Cahn    171,  701 

Hehrum  v.  Kuhn 427 

Heineke  v.  Falk   640 

Heise  v.  Bumpaas 193 

Helm  V.  Logan   110 

Hellams  v.  Abbercrombie 

180,  184,  187 

Heller  v.  Board  of  Trade 383 

Hellis  V.  Chapman 474 

Helpenstine  v.  Meredith 562 

Henderson  v.  Beard 99 

Henderson  v.  Cummings 352 

Henderson  v.  Hammond 368 

Henderson  v.  Hicks 597 

Henderson  v.  McDuffee 391 

Henderson  v.  McGregor   14 

Henderson  v.  McPike   278 

Henderson  v.  New  York 547 

Henderson  v.  State   530 

Henderson  v.  Stevenson   293 

Henderson  Build.  &  Loan  Asso. 

V.  Johnson 219 

Hendrick  v.  Lindsay   352,  363 

Hendricks  v.  Goodrich  ....446,  598 

Hendricks  v.  Railroad  Co 299 

Hendrickson  v.  Godsey 234 

Henlin  v.  Hall   149 

Hennersdorf  v.  State 189 

Hennessy  v.  Bacon    :  .  .  .  .    703 

Henning  v.  Miller   481 

Hennington  v.  Georgia    .  .  .  182,  549 

Hennington  v.  Stale   181 

Henry  v.  Dietrich 384 

Henry    v.  Fine 9,  21,     22 

Henry  v.  McAllister   236 

Henry  v.  Root   27,  52,  65,     66 

Henry  v.  Sanson    233 

Henry  v.  Township   377 

807 


Sec. 

Henry  v.   Wells 102 

Hensel  v.  Association   219 

Hentz  V.  Jewell   256 

Herdie  v.  Young 492 

Herekoff,  etc.  Lum.  Co.  v.  Olra- 

stead 528 

Herman  v.  Hodges 107 

Herman  v.  Jeuchner 129 

Hermann    v.    Curiel Ill 

Herreshoff  v.  Boutlneau   ..312,  314 

Herrick  v.  Belknap   646 

Herrick  v.  Xewell   109 

Herring  v.  Amwood 696 

Herriter  v.  Porter   521 

Hersh  v.  Railroad  Co 325 

Hervey  v.  Krost 567 

Hess  V.  Culver   157 

Hetfield  v.  Down   122 

Hewes  v.  Bailey 377 

Hewes  v.  Jordan 148 

Hewitt  v.  Berlin 704 

Hewitt  V.  Dement   216 

Hewlett  V.   Nutt    530 

Heywood  v.  Tillson   343 

Hibbard  v.  Telegraph  Co 297 

Hibernia  Nat.  Bank  v.  Lacombe  419 

Hibbert  v.  Aylatt 105 

Hibblewhite  v.  McMorine 255 

Hickam  v.  Hickam   627 

Hickman  v.  Eggman 449 

Hickman  v.   Haynes    648 

Hickman  v.  Pinkney 640 

Hickman  v.  Shimp    613 

Hicks  V.  Chapman   12,     73 

Hicks  v.  Cram   368 

Hicks  V.  Ins.  Co 404 

Higgins  V.  Brown    499 

Higgins  V.  Dewey 583 

Higgins  V.  Hallock 125 

Higgins  V.  Murray   146 

Higgins  V.  Pitt 172 

Higgins  V.   Senior    90 

Higgins  V.  Scott  629 

Higham  v.  Harris   598 

Highley  v.  Bank   232 


TABLE    OF    CASES. 


Hight  V.  Hipley  139 

High  tower  v.  Slay  ton  517 

Hill  V.  Anderson   61 

Hill  V.  Bank 397 

Hill  V.  Caniield   492 

Hill  V.  Davis 489 

Hill  V.  Day 7 

Hill  V.  Dunham 185 

Hill  V.   Gomme    277 

Hill  V.  Johnson   254 

Hill  V.  Manuf.  Co 681 

Hill  V.  Meeker   222 

Hill  V.  Mortg.  Co 240 

Hill  V.  Nelms  56 

Hill  V.  Paul  283,  517 

Hill  V.  Spear 258,  295,  408 

409,  447 

Hill  V.  Swmney   201 

Hill  V.  Taylor 237 

Hill  V.  Umberger 626 

Hillary  v.  Walter 624 

Hillebert  v.  Porter   562 

Hiller  v.  Ellis 217 

Hills  V.  Elliott 79 

Hills  V.  Snell   340,  457,  478 

Hillson  V.  Browne   199 

Hillyard  v.  Crabtree 474 

Hillyer  v.   Bennett 71 

Hilton   V.    Eckerly 321,341 

Hilton  V.  Houghton 185,  193 

Hime  v.  Idasey   595 

Hinchman  v.  Lincoln 144 

Hinckley  v.  Fowler    363,  479 

Hind  V.  Holship  125 

Hindmarck  v.  Hoffman 502 

Hindrey  v.  Williams 575 

Hinds  V.  Marmolejo   232 

Hinney  v.  Baldwin    402 

Hinsdale  v.  Humphrey 353 

Hinson   v.    Lott 551 

Hippes  V.  Griffin    90 

Hissam  v.  PatiTish.G67,  008,  G«9,  670 

Hissong   V.   Railroad   Co 299 

Hitchcock   V.    Coker 311,  310 

Hitchcock  V.  Galveston   459 


Sec. 

Hitchcock  V.  Giddings    571 

Hoadley  v.  McLaine   648 

Hoadley  v.   Transportation  Co. 

288,  509 

Hoboken  v.  Gear ?26,  530 

Hockett  V.  State 307,  538 

Hochster  v.  De  La  Tour 

594,  604,  607 

Hoddesdon  Gas  Co.  v.  Haselwood    98 

Hodgdon  v.  Davis   208 

Hodge  V.  Sloan  312,  318 

Hodges  V.  Fries    687 

Hodges   V.   Kowing 98 

Hodges  V.  Manuf.  Co 134 

Hodgson  V.  Temple 177,  409 

Hofflin  V.  Moss 276 

Hoffman  v.  Bughlett 487 

Hoffman  v.  Felt 102 

Hoffman  v.  Gallaher 614 

Hogan  V.  Easterday 114 

Hogg  V.  Buffner 214 

Holbrook  v.  Armstrong   82 

Holbrook  v.  Burt 596 

Holbrook  v.   Clapp    443 

Holcomb  V.  Weaver 451 

Hoi  croft  V.  Barber    622 

Holden  v.  Alton 301,  317 

Holden  v.  Brooks 205 

Holden  v.  Hardy   2,  4,  544 

Holden  v.  Upton   175 

Holden  Steam  Mill  Co.  v.  Wes- 

tervelt 44^ 

Holladay  v.  Holladay 237 

Holladay  v.  Kennard 582 

Holladay  v.  Patterson 302 

Holland  v.  Dickerson   561 

Holland  v.  Taylor   269 

Holland  v.  Wilson  479 

Hollenback  v.  Bestine 337 

HoUey  v.  Anness   671 

Hollingsworth  v.  Detroit.  .224,  241 
Holman  v.  Johnson..  .  .  161,  177 

275,  331,  414,  447 

Holman  v.  State 270 

Holme  V.  Guffy   568 


808 


TABLE    OF    CASES. 


See. 

Holmes  v.  Bank  212 

Holmes  v.  Blagg   63 

Holmes  v.  Halde    20Q 

Holmes  v.  Hunt   260 

Holmes  v.  Knights   129 

Holmes  v.  Oil  Co 351 

Holmes    v.    Rice 26,     66 

Holmes  v.  Williams 212 

Holmes  v.  Williamson   434 

Holshue  V.  Morgan   199 

Holt  V.  Clarencieux 66 

Holt  V.  Green    196,  198 

Holt  V.  Holt   470 

Holt  V.  Knowlton   395 

Holt  V.  Thomas 449,  455 

Holtzapffell  v.  Baker    573 

Holyoke  Co.  v.  layman 541 

Homan  v.  Steele 385 

Homan  v.  Stewart 667 

Home  Ben.  Asso.  v.  Sargent.  19,     20 

Homer  v.  Thwing 69,     70 

Honaker  v.  Board   286 

Hood  V.  League   483 

Hoo3  V.  Railroad  Go 290,  294; 

Hooker  v.  Vandewater .  305,  321,  330 

Hooksett  V.    Railroad   Co 537 

Hooper  v.  Edwards 188 

Hooper  v.  Payne 66 

Hooper  v.  Van  Husen 518 

Hoover  v.  Buck 107 

Hope  V.  Association 330 

Hope  V.  Hope   286,  677 

Hopkins   v.   Butte 456 

Hopkins  v.  Logan 98 

Hopkins   v.   Hinl^ley 571 

Hopkins  v.  O'Kane • 248 

Hopkins   v.    Stefan 192 

Hopkins  v.  Stove  Co 341 

Hopkins  v.   United   States. 323,  324 

Hopkinson    v.    Forster 526 

Horacek  v.  Keebler 184 

Horkan  v.   Nesbit 228 

Hormby   v.    Clark 334 

Horn  V.  Bank 567 

Horn  V.  Ins.  Co 16 


See. 

Horn  V.  Luddington 104 

Horn  V.  Railroad  Co 427 

Horner   v.    Frazier 133,  137 

Horner  v.  Graves 313 

Horner  v.  Webster 460 

Hornthal   v.    Burwell 402 

Horstmeyer  v.  Conners 30,     41 

Horton  v.   Bauer 683 

Horton  v.  McCarty 87,     97 

Horton   v.   Thurber 228 

Horton  v.  Tramway  Co 191 

Hosack   V.   Rogers 376 

Hosford  V.  Kanouse 357 

Hosford  V.  Nichols 243 

Hosier   v.    Beard 14 

Hosmer  v.  Railroad  Co 295 

Hosmer  v.   Wilson 609,  610 

Hostetter  v.  Hallinger 357 

Hotel  Co.  V.  Wade 239 

Houghtaling  v.  Ball 138 

Houlton  v.  Dunn 284 

Houston    V.    Frazier 491 

Houlton   V.   Manteuffel 51,     55 

Houlton  V.  Nichol 284 

House  V.  Alexander 41,  43,     44 

House  V.  Water  Works 349 

Houseman  v.  Water  Co 366 

Houser  v.  Lamont 113 

Houser    v.    McGinnas 431,432 

Houston   V.    Darling 375 

Houston  V.  MerrifieFd 267 

Houston,  etc.  R.  R.  Co.  v.  Harm  582 
Houston,    etc.    R.    R.     Co.    v. 

Hill   697 

Houston,    etc.     R.    R.    Co.    v. 

Snelling 640 

Houston  R.  R.  Co.  v.  Mallory.  .   689 

Hovey   v.    Chase 6,       9 

Hovey  v.  Hobson.  .9,  21,  22,  23,     24 

Hovey   v.   Pitcher 639,   640,  655 

How  v.  Loring 124 

Howard   v.    Benton 345 

Howard  v.  Borden 147 

Howard  v.  Bugbee.555<5B2,  565,  566 
Howard  v.   Castle 166 


809 


TABLE    OF    CASES. 


Sec. 

Howard  v.  Daly 602,  604,  606, 

607,  686 

Howard  v.  Gobel 483 

Howard  v.  Hunt 597 

Howard  v.  Manuf.  Co 697 

Howard  v.  Roberts 386 

Howard  v.  Simpkins 41 

Howard   v.    Stillwell    Co 297 

Howden  v.  HaigE 171,   172,  701 

Howden  v.  Simpson 286 

Howe  V.  Clancey 488 

Howe  V.  Conduitt 594 

Howe  V.  Hayward 153 

Howe  V.  Howe 21 

Howe   V.    Smith 153 

Howe  Mach.   Co.   v.   Bryson .  .  .  697 

Howe  Machine  Co.  v.  Gage. 551,  552 
Howe  Sew.  Mach.   Co.  v.   Ros- 

enteel 590 

Howell  V.  Church 385 

Howell  V.  Coupland 659 

Howell  V.  Field 125 

Howell  V.  Fountain 284 

Howell    V.    Knickerbocker    Ins. 

Co 570 

Howell   V.    Showell 97 

Howell  V.  Taylor 7 

Howes  V.  Wireworks  Co 660 

Hewlett  V.  Hasweli 65 

Howsmon  v.  Water  oo.348,  349,  352 

Hoxie    V.    Lincoln 62 

Hoyt  V.  Casey 45 

Hoyt  V.   Holly 319 

Hoyt  V.  Pawtucket  Inst 208 

226,  228 

Hoyt  V.   Thompson 228 

Hubard  v.  Long 158 

Hubbard  v.  Andrews 402 

Hubbard  v.  Belden 475,  589 

Hubbard  v.  Cummings 65 

Hubbard  v.  Martin 452 

Hubbard  v.  McNaughton 170 

Hubbard  v.  Miller 316 

Hubbard  v.  Railroad  Co 293 

Hubbell  V.  Flint 409 


Sec. 

Hubbell  V.  Ins.  Co 240 

Huckins  v.  Hunt 171 

Hudson  V.  Geary 181 

Hudson  Coal  Co.  v.  Coal  Co.  .  .  661 

Huegin  v.   Wisconsin 315 

Huff  V.  Nickerson 353 

Huffman  v.  Houghlett 495 

Huffman  v.  Starks 135 

Hughes  V.  Dougherty 199 

Hughes  V.   Edwards 570 

Hughes  V.    Fisher 130 

Hughes  V.   Frum 134 

Hughes  V.   Griswold 228 

Hughes   V.   Klingender 403 

Hughes  V.  Penn.  R.  R.  Co 421 

Hughes  V.   Stanley 514 

Hugerecht    v.    State 188 

Hughston  V.  Nail 631 

Huguenin  v.  Boseley 503 

Hulbard  v.  Moore 274 

Huling  V.  Drexell 229 

Huling  V.  HuTing 12 

Hull  V.  Louth 24 

Hull  V.  Railroad  Co .' .  .  .  288 

Hull  V.  Ruggles 270,  271,  409 

Hulse  V.  Machine  Co 274 

Hulst  V.   Association 666 

Humber    v.    Brisbane 92 

Humble    v.    Hunter 457,519 

Humble's    Case 107 

Humphrey   v.   Clark 212 

Humphrey  v.  Douglass 69 

Hundley  v.   Louisville,   etc.   R. 

R.  Co 337 

Hungerford  v.  Moore 494 

Hunkins  v.  Hunkins 105 

Hunnewell   v.    Duxbury 158 

Hunt  V.  Bridghan 634 

Hunt  V.  Hecht 152 

Hunt  V.   Knickerbocker 178 

Hunt  V.  Lane 437 

Hunt  V.  Rousmanier 453 

Hunt    V.    Silk 448,599 

Hunl   V.    Simonds 345 

Hunt  V.  Standart 399 


810 


TABLE    OF    CASES. 


Sec. 

Hunt  V.  Wier 23 

Hunt  V.  Wyman 613 

Hunter  v.  Gardner 517 

Hunter   v.    Giddings 359 

Hunter  v.  Linn 229 

Hunter  v.  Mills 105 

Hunter   v.   Randall 158 

Hunter    v.    Pfeiflfer fS5,  324 

Hunter  v.  Robertson 634 

Hunter  v.   Wetsell. 154,  156 

Huntington  v.  Knox 359 

Huntington  v.  Railroad  Co.  .  . .   603 

Hunton  v.   Nichols 629 

Hurley  v.  Brown 92 

Hurley  v.   Eddenfield 200 

Hurley   v.    Lamoreaux 464 

Hurson  v.  Gaum 312 

Hurry  v.  Mangles 593 

Hurt  V.  Ford 114 

Husband  v.  Davis 382 

Husband  v.  Husband 470 

Huse  Ice  Co.  v.  Heinze 690 

Hussey  v.  Horne-Payne 85 

Hussey  v.   Jewett 66 

Hustis  V.   Pickands 1D6,  198 

Hutchen  v.   Gibson 286 

Hutchins  v.   Heobard 276 

Hutchins  v.  Webster 664 

Hutchinson  v.   Hutchinson....    134 

Hutchinson    v.    Weldin 275 

Huth  V.  Carondelet,  etc.  Co. .  .  .     56 

Huttman  v.  Boulnois 622 

Hutton  V.  Eyre 431 

Hutton  V.   Padgett 96 

Huttley  V.   Simmons 335,  342 

Hutzler    v.    Lord , .  .  .   431 

Hyatt  V.   Bank 395,   398,  408 

Hyatt  V.   Clark 228 

Hyde  v.  Goodnow 399 

Hyman  v.  Cain 49 

Ide  V.   Stanton 91,  141 

Ihley  V.   Padgett 57 

Iherd  v.   Beavens 667,  669 

Illinois  Cent.  R.  R.  Co.  v.  Cobb  685 


See. 
Illinois  Cent.  R.  R.  Co.  v.  Read  295 
Illinois  Cent.  R.  R.  Co.  v.  Har- 
ris     292 

111.  Cent.  R.  R.  Co.  v.  Illinois.  .   539 
Illinois  Land  Co.  v.  Bonner. 27,     66 

Inchbald  v.   Coffee  Co 688 

Inchbald   v.    Western 009 

Independence  v.  Ott 382 

India  Rubber  Co.  v.  Koch 320 

Indianapolis  Chair  Co.  v.  Wil- 
cox       27 

Indianapolis,  etc.  R.  R.  Co.  v. 

Ervin 306 

Indianapolis  R.  R.  Co.  v.  Allen  288 

Ingersoll    v.    Randall 197 

Ingersoll  v.  Roe 499 

Ingles  V.  Usherwood 407 

Ingraham  v.  Baldwin ....  9,  12,     25 

Inhoff  V.  Witmer 12 

In  re  Argus  Co 670 

In  re  Baker 8 

In    re    Breitung 404,  405 

In    re    Brooklyn 534,535 

In  re  Considine 544 

In  re  Davison 36 

In  re  Debs 336 

In    re    Dugend 57 

In  re  Eight-Hours  BFll 4 

In  re  Eidenmuller 57 

In  re  Empress  Eng.  Co 360 

In  re  Eyer 93 

In  re  Fritz's  Estate 520 

In    re    Garcelon 274,  520 

In  re  Grilespie 508 

In   re   Gordner 627 

In  re  Hearn 36 

In  re  Hodson's  Settlement.  .32,     52 

In  re  Hong  Wah 1 

In  re  House  Bill 2,  540 

In   re   Hoyle 83 

In  re  Humniel's  Estate 118 

In    re    Jacobs 4,  271 

In   re   Jager 198 

In  re  Kessler's  Estate 460 

In  re  Keymer 198 


811 


TABLE    OF    CASES. 


Sec. 

In   re  Kimball 400 

In  re  King 69 

In  re  Macleay 179 

In  re  Maguire 544 

In    re    Mechanics    &    Farmers 

Bank 560 

In    re    MoRneux 340 

In  re  Morgan 4 

In  re  Morrissey 36 

In  re  Negus 364 

In  re  Penzansky 57 

In  re  Preston 2 

In   re   Rahrer 554 

In  re  Rogers 704 

In  re  Rothehan,  etc.  Co... 339,  360 

In  re  Ryder 470 

In  re  Saltykoflf 57 

In  re  Schmidt's  Estate 460 

In  re   Snelling 7 

In  re  Stein 15 

In  re  Ten-Hour  Law 4 

In  re  West 516 

in  re  Worthington 283 

In  re  Wyatt 508 

Insurance    Co.    v.    Bullene.  ...   521 

Ins.  Co.  V.  Colt 80 

Insurance  Co.  v.  Hull 330 

Insurance  Co.  v.  Rodel 19 

Insurance  Co.  v.  Water  Co ...  .   348 
349,  350 
International     x>uilcf.     &    Loan 

Asso.  V.  Abbott 219 

International  R.  R.  Co.  y.  Daw- 
son     302 

International,  etc.  Railroad  Co. 

V.  Hinzie 288 

International  Text  Book  Co.  v. 

Weissinger 515 

Inter-Ocean    Publishing   Co.    v. 

Associated  Press 322 

Interstate    Commerce    Commis- 
sion V.  Baird 326 

Iowa  City  v.  Johnson  County.   452 

453 
Iron  Works  v.  Warner 402 


See. 

Iverson  v.    Shorter 561 

Irvine    v.    Hanlin 449 

Irvine  v.  Irvine.  .26,  27,  56,  57,  331 

Irvine  v.    Stone 139 

Irwin  V.  Curie 176 

Irwin  V.  Williar.  .245,  249,  259,  305 

Isaacs   V.   Davis 602,  605 

Isaacs  V.  Hermann 464 

Isle  Royal  Mine  Co.  v.  Herlon.   492 

Isler   v.   Baker 15 

Ivenson   v.    Caldwell 128 

Ivey  V.  Lelland 415,  420 

Izard  V.   Izard 466 

Jabriskie  v.  Railroad  Co ■  384 

Jacobia    v.    Terry 74 

Jacobs  V.  Credit- Lyonnais 420 

Jacobs    V.    Pollard 394,  438 

Jacobson  v.  Le  Grange 465 

Jacobus  V.  Railroad  Co 288,  295 

Jackisch    v.    Hardtke 430 

Jackson  v.    Benson 79 

Jackson  v.   Burchin 57,     66 

Jackson    v.    Covert 139 

Jackson  v.   Fassitt 212 

Jackson   v.    Green 403 

Jackson   v.    Gumear 9 

Jackson  v.  Hough 445 

Jackson  Iron  Co.  v.  Concentra- 
tion Co 354 

Jackson  v.  Jackson 400 

Jackson  v.  Lever 672 

Jackson  v.  May 228,  235 

Jackson   v.    Morris 215 

Jackson  v.  Mortg.  Co 417 

Jackson   v.   Murray 388,  434 

Jackson  v.  Myers 107 

Jackson  v.  Seelye 79 

Jackson  v.   Stanfield 113,  341 

Jackson    v.    Stoekbridge 351 

Jackson  v.  Travis.  ..  .208,  212,  230 

Jackson   v.   Tupper 154 

Jackson  v.  Walsh 541 

Jacksonville,    etc.    Railway    v. 
Hooper 568,  569,  575 


812 


TABLE    OF    CASES. 


See. 
Jacksonville,  etc.  R.  R.  Co.  v. 

Manuf  Co 691 

Jacques  v.  Sax 27,  69 

Jacquinet    v.    Boutron 577 

Jaflfray  v.  King 618 

James  v.  Morgan 568 

James  v.  Muir 141 

James  v.   Newton 521,   522,  523 

524,  526 

James   v.    Shorter 123 

James  v.  State 264 

Jameson  v.   Dimock 105 

Jamison  v.   Wallace 254 

Janin  v.  Brown 590 

Jannin  v.  State 173 

Jaques   v.   Golightly 176 

Jaques    v.    Marquand 504 

Jarboe    v.    Telegraph    Co 297 

Jared  v.  Vanvleet 457 

Jarrett  v.  Cope 220 

Jeflferson   v.    Asch 354 

Jefferson      Branch      Bank      v. 

Shelly 534 

Jefferson  v.  Slagle 132 

Jefford   V.    Ringgold 66 

Jeffrey   v.    Bigelow 685 

Jeffreys   v.   Gurr 435 

Jelks  V.  Barrett 87 

Jell   V.   Douglass 371 

Jellett  V.  Rhode 135 

Jemison    v.    McDaniel.  .  .  .573,  580 

Jemness  v.  School  Dist 201 

Jenesen   v.   Jenesen 7 

Jenkins  v.  Fowler 345 

Jenkins    v.    Frink 165,  169 

Jenkins   v.   Hogg •  •  -  ■  168 

Jenkins   v.    Jenkins 13,     61 

Jenkins    v.    Lewis 234 

Jenkins    v.    Locke 678 

Jenkins  v.  Long 623 

Jenkins  v.  School  Dist 432 

Jenkins  v.   Tucker 435,  485 

Jenks  V.   School  Dist 386 

Jenness  v.  Wendell 143 

Jennings   v.    Broughton 600 


Sec. 

Jennings    v.    Camp 666 

Jennings  v.  Lyons 589 

Jennings  v.   Newman 485 

Jennings   v.   Rundall 69,     70 

Jermyn    v.    Moffitt 515,  518 

Jerome  v.    Bigelow 163 

Jerret  v.  Bartlett 301 

Jesserich    v.    Walruff 484 

Jeter  v.   Fellows 402 

Jewett  Pub.   Co.  v.   Butler 164 

Jewett  V.  Railroad  Co 302 

Jex    V.    Mayor 456 

Jock   V.   McKee 110 

John    Hancock   L.    Ins.    Co.   v. 

Moore 19 

Johns  V.  Bailey 193 

Johns  V.  State 181 

Johnson  v.  Brook 84,  674 

Johnson  v.  Brown 184 

Johnson  v.  Buck 85 

Johnson  v.   Church 83 

Johnson  v.  Cuttle 151 

Johnson  v.   De  Peyster 640 

Johnson    v.    Dodgson 83 

Johnson    v.    Foster 363 

Johnson  v.  Gawtry 401 

Johnson    v.    Harvey 434 

Johnson    v.    Hodgson 196 

Johnson   v.    Hubbell 465,466, 

467,  667 

Johnson  v.  Hudson 177 

Johnson  v.   Hulings.  .  177,   196,  198 

Johnson  v.  Hunt 275 

Johnson   v.   Ins.    Co.... 63,   70,  348 
404,  488 

Johnson  v.  Jennings 448 

Johnson   v.   Johnson 448 

Johnson  v.  Kaune 249 

Johnson   v.   Krassin 480 

Johnson    v.    Lines 41,     67 

Johnson  v.  McGregor 261 

Johnson    v.    Pace 515,  517 

Johnson   v.   Packet   Co 430,  431 

Johnson  v.  People 188 

Johnson   v.    Pie 70 


813 


TABLE    OF    CASES. 


Sec. 
Johnson  v.    Railroad   Co.. 288,  299 

300,  325 

Johnson  v.  Rockwell 66 

Johnson  v.  Russell 246 

Johnson  v.  Stark  County 224 

Johnson   v.   Steffen 673 

Johnson   v.    Stone 9 

Johnson   v.    Terry 277 

Johnson    v.    Torpy 394,  437 

Johnson    v.    University 644 

Johnson    v.    Wadsworth ....  94,     95 

Johnson  v.   Watson 82,  137 

Johnson    v.    Welch 359 

Johnson  v.  Willis 195 

Johnston    v.    Browne 514 

Johnston    v.    Jones 84 

Johnston  v.  McConnell 178,  202 

Johnston   v.   Mining   Co... 625,  626 

Johnston  v.  Trask 140 

Johnstone    v.    Willing 594 

Jolly   V.    Walker 121 

Jones   V.   Ashburnham 119 

Jones    V.    Bacon 96,  129 

Jones  V.  Baird 488 

Jones    V.    Bank 151,152 

Jones    V.    Blocker 341,342 

Jones  V.   Call 697 

Jones  V.  Caswell 167 

Jones   V.   Dow 89,     98 

Jones  V.  Evans 21 

Jonas  V.   Fields 114 

Jones    V.    Fulcord 165 

Jones  V.  Hoar... 461,  486,  487,  488 

Jones  V.  Jones 605,  628 

Jones  V.  Judd 475,  576,  589 

659,  660 

Jones    V.    Martin 466,  667 

Jones  V.  Noy 15 

Jones  V.  Orchard 129 

Jones  V.  Parker 668 

Jones   V.   Pouch 134 

Jones  V.  Railroad  Co 288 

Jones  V.  Randall 245 

Jones  V.  Reynolds 144 

Jones  V.  Smith 196,  458 


Sec. 

Jones  V.  Stanley 341 

Jones  V.  Taylor 402 

Jones  V.  Thomas 352 

Jones  V.  Trust  Co 396 

Jones    V.    Tye 91,     92 

Jones  V.   United   States.  .  .569,  586 

Jones  V.  Wilson 432,  457 

Jones  V.  Yates 162 

Jordan    v.    Coffield 43,     50 

Jordan    v.    Dayton 200 

Jordan    v.    Humphrey 228 

Jordan  v.  Miller 134 

Joseph  V.  Machine  Co 483 

Joseph   V.   Smith 128 

Joslin  V.   Car   Spring  Co.. 352,  353 

Joslyn  V.   Parlin 519 

Joy  V.   St.  Louis 668,  676 

Judah  V.  Mieure 392 

Judd    V.    Harrington 320,323 

Judefind    v.    State 180,  181 

Judge   V.    Stone 25 

Judson  V.   Bessemer 278 

Judson  V.    Corcoran 508 

Judy  V.  Gilbert 105 

Julliard  v.  Greenman 278,  529 

Justh  V.  Bank 504 

Justice  V.  Elwert 660 

Justice    V.    Lange 98 

Kahn    v.    Walton 249,257 

Kamena   v.    Huelbig 508 

Kanaga  v.  Taylor 402 

Kanapolis  Land  Co.  v.  Morgan  647 

Kane  v.  Bloodgood 630 

Kane  v.  Clough 515 

Kansas  City  v.  O'Connell.  .349,  366 
Kansas  City,  etc.  R.  R.  Co.  v. 

Conlee 133 

Kansas  City,  etc.  R.  R.  Co.  v. 

McCoy 284 

Kansas     Pac.     R.     R.     Co.     v. 

Peavey 299 

Karcher  v.  Green 27,     35 

Kassie  v.  Congregation 518 

Kates    v.    Woodson 9 


814 


TABLE    OF    CASES. 


■fcJee. 

Katzmyer    v.    Ennis 125 

Kauffman  v.  Cooper 352 

Kaufman  v.  Hamm.  .  .  184,  185,   187 

Kaum  V.  Kaltwasaer 365 

Keagy    v.    Trout 208 

Keane  v.  Boycott 66 

Kearley  v.  Thomson 275 

Kearney   v.   Taylor 169 

Kearney  Milling  and  Elevator 

Co.  V.  Railroad  Co 510 

Kearson  v.   Pearson 573 

Keat  V.    Allen 275 

Keeble  v.  Hickeringill 341 

Keedy  v.   Long 603,  618 

Keeler  v.   Clifford 653 

Keeler  v.  Herr 699 

Keenan  v.  Stimpson 402 

Keene  v.   Sage 357 

Keesling   v.    Frazier 129 

Kegan  v.  Malone 460 

Keichen   v.    Lee 27 

Keifer  v.  Summers 430 

Keil  V.  Healey 9 

Keiser  v.   State 425 

Keith  V.   Herschberg  Co 317 

Keith  V.  Optical  Co 312 

Keller  v.  Boatman 389 

Keller    v.    Hewitt 201 

Keller  v.  Railroad  Co 290 

Kelley    v.    Lewis 208 

Kelley  v.  Schupp 132 

Kelleyville  Coal  Co.  v.  Harrier       1 

2,  341 

Kellogg  V.  Clark 82 

Kellogg  V.  Larkin 313 

Kellogg  V.  Miller 417 

Kelly   V.   Bradford -.473,  477 

Kelly  V.   Davis 30,   47,  470 

Kelly    V,    Solari 450,  451 

Kelsey  v.  Crother 678 

Kemble   v.   Kean 677 

Kemmitt   v.    Adamson 228 

Kemp  V.  Fender 388,  434 

Kemp   V.   Vigne 266 

Kempe  v.   Bader 632 


See. 

Kenard  v.  Cass 609 

Kendall    v.    Gaxnead 137 

Kendall    v.    Kendall 460 

Kendall    v.    Lawrence 27,     66 

Kendall  v.  May 11 

Kendrick  v.   Baker 63 

Kendrick  v.  Niesz 26,  52,     65 

Kendricky  v.  Jervis 508 

Kennard  v.  Whitson 465 

Kennedy  v.   Brown 205 

Kennedy  v.  Cochrane 173 

Kennedy    v.    Eblen 99 

Kennedy  v.  Green 626 

Kennedy    v.    Poor 645 

Kennemore  v.  Kennemore 105 

Kenner  v.  Bitely 681 

Kenney  v.  Queen 642 

Kenney    v.    Railroad    Co.. 288,  295 

Kenneway  v.  Trelevan 96 

Kent  v.   Kent 133,  134 

Kenworth  v.   Stevens 640 

Kenworthy  v.  Schofield 138 

Kenyon  v.  Stewart 559 

Kerchival  v.  Doty 703 

Kerkhof  v.  Atlas  Paper  Co...    154 

Kern  v.  Kern 13 

Kerr   v.    Benefit   Asso 16 

Kerr   v.   Lucas 454 

Kerr   v.   Lunsford 7 

Kershaw  v.  Kershaw 520 

Kerwin  v.  Ins.  Co 25 

Kestler  v.  Hereth 629 

Ketchum  v.   Catlin 571 

Kettle  v.  Harvey 666 

Keyes   v.    Maynard 127 

Key    V.    Davis 23,     25 

Keys  V.  Harwood 482 

Keyser  v.  Rice 258 

Kidd  v.  Pearson 182,  326,  411 

Kidder  v.  Hunt 480 

Kidder  v.  Vandersloot 227 

Kidney    v.    Persons 446,  488 

Kiehne   v.    Wessell 10 

Kiene  v.  Shaetiing 134 

Kehlholz  v.  Wolff 239 


815 


TABLE    OF    CASES. 


Sec. 
Kihlbery  v.  United  States. 642,  645 

Kilbee   v.    Myrick 25 

Kilbourn  v.  Sunderland 626 

Kilcrease  v.  Johnson 399 

Kiley  v.  Telegraph  Co 297 

Kilgore  v.  Jordan 64,  67,     69 

Kilgore   v.    Rich 43,     4b 

Killbride  v.   Moss 121 

Kilner  v.   O'Brien 234 

Kimball  v.   Comstock 158 

Kimball  v.  Cunningham 448 

Kimball    v.    Morton 674 

Kimball  v.  Noyes 362 

Kimball  v.  Railroad  Co 617 

Kimball  v.  Vroman 613 

Kimberly  v.   Jennings 677 

Kimble  v.   Cummins 434 

Kincaid  v.  Hooker 388,  436 

Kincaid    v.    Kincaid 51,   103 

Kine  v.   Turner 321 

King  V.    Birdbrooke 619 

King  V.  Brown. .  .  108,  110,  479,  480 

King    V.    Bushnell 80,  113 

King    V.    Cummings 7 

King    V.    Doolittle 571 

King  V.  Fleming 185 

King  V.  Hoar 368,  370 

King  V.   Inhabitants 619 

King  V.  King 474 

King   V.    Missouri 555 

King   V.    Steiren 602,  605 

King  V.   Summit 96 

King  V.  Toney 619 

King  V.   Welcome 480 

King   V.    Whitnash 180 

King  V.  Woodbridge 684 

Kinghorne    v.    Telegraph    Co.  .   297 

Kingman   v.   Perkins 68,  508 

Kingsbury  v.   Burrill 524 

Kingsbury  v.  Earle 365 

Kingsbury  v.  Kirwan.245,  249,  255 

Kingsbury  v.  Powers 72 

Kingsley  v.  Balcome 123 

Kingston    Bank    v.    Ettinger . .   450 
Kinney  v.  Com 400 


Sec. 

Kinney  v.  McDermott 195 

Kinney  v.  Railroad  Co 288 

295,  300 

Kinsman   v.    Parkhurst 328 

Kinyon    v.    Kinyon 520 

Kinyon   v.   Young 104 

Kirby  v.   Johnson 149 

Kirck  V,  Merry 281 

Kirkland    v.    Lowe 406 

Kirkham  v.  Morter 122 

Kirkland  v.  Randen 246 

Kirkpatrick    v.    Bonsall 249 

254,  255 

Kirkpatrick   v.    Smith 237 

Kiser  v.  Halladay 483 

Kitchen  v.  Lee 60 

Kitzinger   v.    Sanborn 569,  573 

Klapp   V.   Kleckner 386 

Kleckley    v.    Leyden 175,  178 

Klinck    V.    Price 243,  408 

Knapp  V.  Hyde 499 

Kneitle  v.  Newcomb 276 

Knevals  v.  Blauvelt 518 

Knickerbocker      Ins.      Co.      v. 

Peters 18,     20 

Knight    V.    Bean 589 

Knight  V.   Hunt 171,  701 

Knight  V.  Knight 627 

Knight  V.   Mann 148 

Knight  V.   McKinney 624 

Knight  V.   Packer 170 

Knight   V.    Railroad    Co... 290,  294 

Knights    V.    Naeru 269 

Knights    Templar    Indem.    Co. 

V.  Berry 404 

Knights      Templars      Asso.      v. 

Greene 404 

Knorr  v.   Bates 368 

Knott  V.  Railroad  Co 332 

Knowlman  v.  Bluett 134 

Knowlton   v.   Cooley 521 

Knowlton  v.  Dorety 205 

Knowlton    v.    Moore 395 

Knox  V.  Flack 28 

Knox  V.   Haug 12 


816 


TABLE    OF    CASES. 


See. 
Knoxville  Iron  Co.  v.  Harbison  .        2 

Koch  V.    Williams 110,  480 

Koehler   v.    Buhl 614 

Kohn  V.  The  Renaisance 415 

Koontz  V.  Bank 450 

Koontz  V.  Franklin   530 

Koplitz  V.  Gustavus Ill 

Korn  V.  Browne 528 

Kountz   V.    Price 192 

Kozel  V.  Dearlove 99 

Kramer  v.  Irwin 696 

Krebs  v.  Rosenstein 336 

Kreger  v.   Leppel 474,  484 

Kreith  v.   Myer 91 

Kribben   v.    Haycraf t 287 

Krohn  v.  Bantz 98 

Krohn    v.    Williamson 674 

Krutz   V.    Stewart 122 

Kuhns   V.   Gates 156,  192 

Kuhn's    Estate 520 

Kullman  v.   Greenbauni 171 

172,  701 

Kullman  v.   Simmes 252 

Kupf ert   V.   Association 220 

Kurner  v.  O'Neil 398 

Ky.  L.  &  C.  Ins.  Co.  v.  Hamil- 
ton      266 

Lachman  v.  Block 395 

Lacy  V.   Kinaston 376 

Lacy  V.   Osbaldiston 618 

Lacy  V.   Pixler 56,  59,  69,     70 

Ladd  V.   Rogers 192 

La  Dow  V.  Bank 232 

LaFayette  M.  Corpo.  v.  Magoon  385 

Laflin  v.  Howe 448 

Laidlou   v.    Hatch 122 

Laird  v.  Campbell 701 

Laird   v.   Hodges 419 

Lake  v.  Tyson 429 

Lakeman   v.    Pollard 475,  591 

Lamar  v.  Micou 240, .  420 

La  Mar  v.  Weidman 198 

Lamb  v.   Bralaski 474 

Lamb  v.  Crafts 139,   146 


See. 

Lamb  v.  Harris 600 

Lamb  v.  Nice 360 

Lamb    v.    Tucker 128,  353 

Lambert  v.  Heath 448 

Lamborn  v.  Commissioners ....    449 

Lansburg  v.  Dist.  Col 270 

Lamoile  County  Nat.   Bank  v. 

Bingham 237 

Lamore  v.   Frisbie 194,  195 

Lampert  v.  Gas  Light  Co 351 

Lampson   v.    Hobart 121 

Lanahan  v.  Heaver 696 

Lancaster   Bank  v.   Wood 12 

Lancaster  Co.   Bank  v.  Moore.      22 

472 

Lance  v.  Pearce 122,  125 

Land  and  Loan  Co.  v.  Bonner.     26 

57 

Land  Co.  v.  Pitt 351 

Landis  v.  Saxton  228 

Landworlen  v.  Wheeler   383 

Lane  v.  Grossman   671 

Lane  v.  Shackford   137 

Lang  V.  Railroad  Co 616 

Langdon  v.  Clayson 56 

Langdon  v.  People 12 

Langdon  v.  Richardson    125 

Lange  v.  Werk 313 

Langevin  v.  St.  Paul 452 

Langfort  v.  Tiler    153,  156 

Langforth  v.  Gentry   629 

Langhlin  v.  Harvey 278 

Langworthy  v.  Little   402 

Lannan  v.   Smith    515,  522 

Lansden  v.  McCarthy 519 

Lantry  v.  Parks 474 

Lanz  V.  McLaughlin 102 

Lapham  v.  Osborne   479 

Lapping  v.  Duft'y 526 

Lapsley  v.  Brashear   561 

Largerfelt  v.  McKie 80 

Larned  v.  Andrews    177 

Larsen  v.  Jensen   126 

Laroussini  v.  Werlein 671 


8J7 


TABLE    OF    CASES. 


See. 

La  Rue  v.  Gilkyson 11,  472 

La  Rue  v.  Groezinger   518 

Larson  v.  Chase 485 

Larzion  v.   Piochi    521 

Lash  V.  Parlin   91 

Lasher  v.  Gardner   99 

Latham  v.  De  Loeselle 419 

Lathrop  v.   Knapp 385,  700 

Latt  V.  Booth 44 

Laubenheimer  v.  Mann 313 

Laughran  v.  Smith   Ill 

Lavell  V.  Frost 124 

Law  V.  Grant 352 

Law  V.  Hodgson 178,  196,  205 

Law  V.  Mills 406 

Lawing  v.  Rentles   573,  587 

Lawrence  v.  Bank   450 

Lawrence  v.  Clark   171,  701 

Lawrence  v.  Cook    134 

Lawrence  v.  Fox. 339,  348,  353,  354 

Lawrence  v.  Lawrence   107 

Lawrence  v.  McArter    28 

Lawrence  v.  Railroad  Co 290 

Lawrence  v.  Robinson 15 

Lawrence  v.  Taylor 482 

Lawrence  v.  United  States  ....  339 

Lawrenson  v.  Butler   669 

Lawson  v.  Lawson 445 

Lawton  v.  Bletcn 249 

Lawton  v.  Steele   1 

Lea  V.  Cassan 330 

Lea  V.  Hopkins 18Q 

Leach  v.  Marsh   471 

Leacox  v.  Griffith   57,     61 

Leahy  v.  Dugdale   519 

Learn  v.  Upstill 121 

Lease  v.  Railroad  Co 300 

Leatherberry  v.  Odell   618 

Leather  Cloth  Co.  v.  Lorsont.  .  309 

314,  318 

Leather  Co.  v.  Hieronimous .  .  .  648 

Leather  Manuf.  Co.  v.  Morgan.  428 

Leavans  v.  Bank   229 

Leavitt  v.  Dover    665 

Leavitt  v.  Files   22 


Sec. 

Leavitt  v.  Stern 112 

Ledbetter  v.  Walker   99 

Leddy  v.  Barney 375 

Lee  v.  Abdy   405 

Lee  V.  Core 675 

Lee  V.  Cherry   83 

Lee  V.  Griffin   694 

Lee  V.  Hawks   81 

Lee  V.  Hills   91,  134 

Lee  V.  Kirby 672 

Lee  V.  Lee   465 

Lee  V.  Mahoney 85 

Lee  V.  McKoy 632 

Lee  V.  Merritt 446 

Lee  V.  Sellens    171,  701 

Lee  County  v.  Abrahams 530 

Leeds  v.  Little   655,  666,  699 

Leep  V.  Railroad  Co 1,  2,  541 

Lee's  Appeal    467 

Lees  V.  Whitcomb   98 

Leffingwell  v.  Warren 533 

Lefils  v.  Sugg 41 

Legat  V.  Clark   12 

Lehigh     Valley     R.     R.    Co.    v. 

Woodring 515,  517,  518 

Lehman  v.  Field    413 

Lehman  v.  Schmidt 464 

Leicester  v.  Rose   701 

Leightmens  v.  Kadetska    193 

Leisy  v.  Hardin   411,  548,  552 

Leith  V,  Irwin    222 

Leloup    V.    Mobile 552 

Lemnion  v.  Beeman   26,  64 

Lemmon  v.  Box 121,  125 

Lemonius  v.  Mayer   413,  416 

Lento  v.  Clarke    92 

Leonard  v.  Leonara 12 

Leonard  v.  Patton 229 

Leonard  v.  Pool   173 

Leonard  v.  Stott 41 

Leonard  v.  Vredenberg   .  .  .  125,  127 

Leonard  v.  Williams 222 

Leonardson  v.  Hulin 667 

Leopold  V.  Salkey   578 

Le  Peinteo  v.  Railroad  Co ...  .  684 


818 


TABLE    OF    CASES. 


Sec. 

Lerch  v.  Gallup 96,  129 

Lerned  v.  Johns   89 

Lerned  v.  Wannemacher 83 

Leroux  v.  Brown..  100,  101,  115,  116 

Le  Roy  v.  Beard 419 

Le  Sage  v.  Coussmaker 465 

Leslie  v.  Lorillard 303,  304, 

314,  318 

Lesserrich  v.  Pettit    124,  125 

Lessley  v.   Phipps 560 

Lester  v.  Buel 249,  251,  254 

Lester   v.  Heidt 91 

Lester  v.  Howard    17;> 

Lester  v.  Jewett   v;« 

Lett  V.  Morris    526 

Levisee  v.  Railroad  Co 4G2 

Levistone  v.  Landreaux   355 

Levy  V.  Herbert 606 

Levy  V.  Yates   203 

Levyeau   v.    Clements 340 

Lewis  V.  Arbuckle   8 

Lewis  V.  Brehme   87 

Lewis  V.  Bright   ITS 

Lewis  V.  Coal  Co 3  !  8 

Lewis  V.  Hadley 420 

Lewis  V.  Holmes    694 

Lewis  V.  Land  Co 348,  351 

Lewis  V.  Lewis   432 

Lewis  V.  Littlefleld   69 

Lewis  V.  Maddoeks   466 

Lewis  V.  Railroad  Co 642,  645 

Lewis  V.  Reichey  91 

Lewis  V.   Sawyer    357 

Lewis  V.  Welch..  176,   178,  197,  205 

Lewis  V.  Wood   88 

Lewis  Invest.  Co.  v.  Boyd 222 

Lhoneux  v.  Corporation   404 

Libbey  v.  Downey   178 

Libby  v.  Robinson   446 

Libhart  v.  Wood    619 

License  Tax  Cases   547 

Lickbarrow  v.  Mason    510 

Liddell  v.   Wiswall 391 

Lidderdale  v.  Montrose 283 

Life  Asso.  v.  Waller   19 


Sec. 

Lightbody  v.  Smith 515 

Ligonier  v.  Ackerman 458 

Lilly  V.  Hays   360 

Lilly  V.  Tobbein 367 

Lilly  V.  Wagoner    12,  517 

Lime  Co.  v.  Green 352 

Lime  Rock  Bank  v.  Plimpton.  .    504 
Lincoln  v.  Buckmaster .  .  .  9,  22,  472 

Lincoln  v.  Kinzey   128 

Lincoln  v.  Preserving  Co 88 

Linder  v.  Carpenter    202, 

Lindley  v.  Simpson 130 

Lindsay  v.  Hill    420 

Lindsey  v.  Boone  County 458 

Lindsey  y.  Lindsey   7 

Lindsley  v.  Railroad  Co.  .  .288,  617 

Line  v.  Nelson   379 

Liness  v.  Hesing 279,  280 

Lingeman  v.  Shirk 92 

Linneman  v.  Moross   354 

Lipp  V.  Hunt   105 

Little  V.  Bmvers 456 

Little  V.  Dawson   465 

Little  V.   Dougherty    85 

Little  V.  Gibbs    430 

Little  V.  Poole 19j,  205 

Little  V.  Portland 521,  522 

523,  626 

Little  V.  Tliurston   595 

Littlefleld  v.  Littleticld 634 

Little  Miama  R.  K.  Co.  v.  Ste- 
vens     299 

Littler  v.  Snively 627 

Livermore  v.  Crane 364 

Liverpool  v.  Wright 283,  517 

Liverpool,    etc.    Asso.    v.    Fai.- 

hurst 70 

Liverpool  Marine  Credit  Co.  v. 

Hunter   258 

Liverpool  Steam  Co.  v.  Ins.  Co.  240 
288,  420,  421 

Livingston    v.    Page 280 

Livingstone  v.  Tremper    375 

Lloyd  V.  Brewster   600 

Lloyd  V.   Giubert 240,  420 


819 


TABLE    OF    CASES. 


Sec. 

Lloyd  V.  Malone 165 

Lloyd  V.  Scott 233 

Lobdell  V.  Lobdell    106 

Lobdell  V.  Mason 99 

Locke  V.  Smith 49 

Lockett  V.  Usiy 560 

Lockman  v.  Wood   67 

Lockwood  V.  Barnes   82 

Lockwood  V.  Mitchell   241 

Lockwood  V.  Thorne 427,  429 

Lockwood  V.  Wilson   120 

Lodge  V.  Dicas   368 

Loeb  V.  Peters    510 

Logan  V.  Gardner    27 

Logan  V.  Musie   255 

Logan  V.  Trayser   434 

Logan  V.  Wallis   464 

Logan  V.  Weinholt 466 

Log    Cabin    Permanent     Build. 

Asso.  V.  Gross 238 

Lohman  v.  State   270 

Lombard  v.  Gregory 208 

Lomen  v.  Grossman 474 

Lomerson  v.  Johnston 499 

London  Guaranty  and  Accident 

Co.  V.  Horn   335,  337 

Long  V.  Fox   25 

Long  V.  Girdwood   406 

Long  V.  Hartwell 99 

Long  V.  Miller   85 

Long  V.  Railroad  Co 330,  582 

Long  V.  State   271 

Long  V.  Towl    304 

Longfellow  v.  Moore 648 

Longley  v.  Griggs 390,  434 

Longshore  Printing  Co.  v.  How- 
ell   334,  335 

Loomis  V.  Ins.  Co 266 

Loomis  V.  Spencer   14 

Lord  V.  Dall    266 

Lord  V.  Davis   130 

Lord  V.  Railroad  Co 684 

Lord  V.  Thomas 578,  008 

Lord  V.  Wheeler   572,  575 

Loren  v.  Hillhouse   639,  055 


Sec. 

Lorillard  v.  Clyde 354,  658 

Lorillard  v.  Palmer 569 

Loser  v.  Board 283 

Lound  V.   Grimwade 164 

Louisiana  v.  New  Orleans   ....    555 

Louisiana  v.  Pilsbury 533 

Louisville,     etc.    R.    R.     Co.    v. 

Barkhouse 512 

Louisville,    etc.    R.   R.     Co.    v. 

Boudenschatz 667,  668,  669 

676,  677 
Louisville,    etc.    K.    R.    Co.   v. 

Commonwealth    188 

Louisville,    etc.    R.    R.     Co.   v. 

Dies 288 

Louisville,    etc.     R.    R.     Co.   v. 

Taylor 295 

Louisville,    etc.     R.    R.     Co.   v. 

Flanagan   325 

Louisville,    etc.     R.    R.     Co.    v. 

Offutt   134 

Louisville,  etc.  R.  R.  Co.  v.  Orr  299 
Louisville,    etc.    R.   R.    Co.   v. 

Philyaw   102 

Louisville,    etc.    R.   R.   Co.    v. 

Sumner   302,  689 

Louisville   Gas   Co.   v.   Citizens 

Gas  Co 303 

Love  V.  Harvey   245,  246 

Love  V.  Welch   98,  704 

Love  V.  Wells   183 

Lovelock  V.  Franklyn   607 

Lovejoy  v.  Howe    352 

Lovejoy  v.  Whipple   185,  193 

Lovridge  v.  Cooper 508 

Low  V.  Prichard    213 

Low  V.  Rees  Printing  Co 4 

Lowe  V.  Griffith   44 

Lowe  V.  Harris 92 

Lowell  V.  Railroad  Co 394 

Lowndes  v.  Anderson   505 

Lowery  v.  Cate 68 

Lowry  v.  Dillman 249,  251 

Lozear  v.  Shields   7 

Lubbock  V.  Tribe   442 


820 


TABLE    OF    CASES. 


See. 

Lucas  V.  Gadwin 473,  477 

Lucas  V.   Harper    246 

Lucas  V.  Parsons   8 

Luce  V.  Deitz 669 

Lucke  V.  Clothing  Cutters 336 

341,  342 

Luckens  v.  Hazlett   234 

Ludlow  V.  Van  liensselaer  ....   415 
Lufkin  Rule  Co.  v.  Fringeli..   312 

Lull  V.  Korf 645 

Lully  V.  Morgan 257 

Lum  V.  McEwen 274 

Luman  v.  Hitehens   1 

Lumley  v.  Gye 334,  341,  342 

Lumley  v.  Ravenscroft 668,  669 

Lumley  v.  Wagner 677 

Lundy  v.  Railroad  Co 294 

Lyle  V.   Shinnebarger    450 

Lyman  v.  Railroad  Co 537 

Lyman  v.  Townshend   274 

Lynch  v.  Bogy 457 

Lynch  v.  Doran   7 

Lynch  v.  Lumber  Co 699 

Lynchberg  Nat.  Bank  v.  Scott.   212 

Lynd  v.  McGregor   64 

Lynde  v.  Lynde   274 

Lyng  V.  Michigan   552 

Lynn  v.  Railroad  Co 646 

Lyon  V.  Annable 440 

Lyon  V.  Culbertson   ..245,  249,  255 

Lyon  V.  King   134 

Lyon  V.  Mitchell    286 

Lyon  V.  Strong 183 

Lyons  v.  Hodgen   257 

Lyons  v.  Wilkins 334,  335,  336 

Lythgoe  v.  Vernon 487 

Lytle  V.  Bowden   443 

Macauley  v.  Turney    336 

MacGreal  v.  Taylor   28,     69 

Mackay  v.  Telegraph  Co 297 

Mackey  v.  Smith   125 

Mackler  v.  Railroad  Co 642 

Maclary  v.   Turner    145 

Macombier  v.  Dane 283 


Sec. 

Maddison  v.  Alderson   ....101,  104 

108,  138 

Maddox  v.  Rowe    667 

Maddox  v.  Simmons   7 

Maeder  v.  Norton    626 

Magce  V.  Billingsly 150 

Magee  v.  Welsh   ^  .      46 

Magoffin  V.  Muldrow    488 

Magoun  v.  Bank    198 

Magnon  v.  Clay   124 

Maguire  v.  Dinsmore    295 

Mahoney  v.  Evans 41 

Mahood  v.  Teazle    274 

Mahoon  v.  Greenfield 487,  488 

Maio  V.  Tea  Co 677 

Makall  v.  Ratchford   336 

Makin  v.  Watkinson 659 

Malbon  v.  Birney 655 

Malcolm  v.  Fullerton   427 

Male  V.  Roberts 401 

Mallalieu  v.  Hodgson   701 

Mallen  v.   May    316,  701 

Mallen  v.  Wenham 515,  516 

Mallory  v.  Gillett.  123,  127,  128,   129 

Malone  v.  Ice  Co 124,  484 

Malone   v.  Railroad  Co 293 

Maloney  v.  Dewey 12 

Maloney  v.  Echart    230 

Maloney  v.   Nelson    129 

Mancy  v.  Hart   483 

Mandel  v.  Butler 612 

Mandeville  v.  Harman   319 

Mandlebaum  v.  Gregorich   ....    177 

Mandon  v.  Ins.  Co 404 

Mandville  v.  Welch   521 

Manhattan   Life   Insur.    Co.    v. 

Broughton 17,     19 

Manistee     Iron     Work     Co.     v. 

Lumber    Co 661 

Manly  v.  Howlett    106 

Mann  v.  Betterley 7 

Mann  v.  Blanchard   158 

Manning  v.  Johnson 27,     69 

Manning  v.  Pipper 667 

Mansfield  v.  Gordon    66 


821 


TABLE    OF    CASES. 


See. 

Mansfield  v.  Lynch   453 

Manstick  v.  Ranege 341 

Manton  v.  Ray 675 

Mantz  V.  Maguire   90 

Manufacturing     Co.     v.     Ames- 
burg  456 

Manufacturer's  Bank  v.  Barnes  428 
Manufacturing  Co.  v.  Barber..  383 
Manufacturers'     Outlet     Co.    v. 

Longley 336 

Marble  Co.  v.  Ripley 667,  668 

672,  677,  678 

Marchand  v.  Association 463 

Marcy  v.  Marcy    82,   137 

Marden  v.  Champlin   83 

Marey  v.  Crawford   129 

Marie  v.  Garrison    169 

Mariner  v.  Collins   460 

Marino  v.  Lahmaier   203 

Market  Co.  v.  New  Orleans...  573 
Marlin  Fire  Arms  Co.  v.  Shields  340 

Marlow   v.    Pittsfield    469 

Marr  v.  Ray Ill 

Marserve  v.  Anderson 270 

Marsh  v.  Hyde... 83,  139,  150,   151 

Marsh  v.  McPherson   609,  611 

Marsh  v.  Railroad  Co 302 

Marsh  v.  Russell    322 

Marshall  v.  Lynn 81 

Marshall  v.  Marshall   7,   178 

Marshall  v.  Meech    526 

Marshall  v.  Quinn 283 

Marshall  v.   Railroad   Co.. 280,  284 
286,  424 

Marshall  v.  Rice   218 

Masterson  v.  Brooklyn   688 

Marston  v.  Bigelow 361 

Marston  v.  Marston    425 

Martin  v.   Goldstein 180 

Martin  v.  Hunt   592 

Martin  v.  Johnson   .  .  .396,  240,  241 

Martin  v.  McFall    341 

Martin  v.  Murphy   312,  314 

Martin  v.  Patterson    105 

Martin  v.  Peet   339,  348 


See. 

Martin  v.  Potter   508 

Martin  v.   Quinn    430 

Martin  v.  Railroad  Co 300 

Martin  v.   Schoenberger    666 

Martin  v.  Stubbins   267 

Martin  v.  Thayer    5 

Martin  v.  Wilson   395,  638 

Martin  v.  Wright 466 

Martus  v.  Houck    475,  640 

Martyn  v.  Arnold    124 

Marvin  Safe  Co.  v.  Norton.  .  .  .   402 

Maryland  v.  Railroad   Co 529 

Maslin  v.  Hiett 375,  387 

Mason  v.  Eldred 370 

Mason  v.  Hale   557 

Mason  v.  Hall    352 

Mason  v.  Lake   399 

Mason  v.  Lord   237 

Mason  v.  Pierce 238 

Mason  v.  Prendergast 502 

Mason  v.  Thompson 585 

Mason  v.  Waits   491,  495 

Mason  v.  Wright... 29,  44,  60,  468 

Masonic  Asso.  v.  Jones 404 

Masonic  Mut.  Ben.  Soc.  v.  Burk- 

hart 269 

Massachusetts  Gen.  Hospital  v. 

Asso.  Co 541 

Massachusetts  Gen.  Hospital  v. 

Fairbanks   11 

Massey  v.   Wallace   274 

Massie  v.  Hiatt   37 

Mastin  v.  Halley   068 

Mater ne  v.  Horwitz 163 

Matherson  v.  Davis 32 

Mathews  v.  People    341 

Mathews  v.  Railroad  Co 537 

Matt  V.  Clark 508 

Matthews  v.  Associated  Press.  .    312 

Matthews  v.  Coe  210,  1^28 

Matthews  v.  Poytress  512 

Mathews  v.  Seaver    128 

Matthews  v.   Wason 243 

Matthieson    v.    McMahon.  .  .  14,  472 
Maurer  v.  JMidway    368 


822 


TABLE    OF    CASES. 


See. 

Maurine  v.  Fogelbeyer    126 

Mauser  v.  Davis    600 

Maxfield  v.  Schwartz   352 

Maxfield  v.  West   104 

Maxim     Nordenfelt     Guns    and 
Ammunition  Co.  v.  Nordenfelt  311 

Maxton  v.  Green 249,  255 

Maxwell  v.  Gerard    585 

Maxwell  v.  Griswold 452 

Max^-ell  V.  Railroad  Co 288 

Maxwell  v.  Swigart 200 

May  V.   Bank    406 

May  V.  Campbell   212 

May  V.  Flint 228 

May  V.  Wanamacher 406 

May  V.   Williams 96,  129 

Maybury  v.  Berkery   429 

Mayer  v.   Stone  Cutters 336 

Maynard  v.  Railroad  Co 295 

Mayo  V.  Assurance  Soc 398 

Mayor  v.  Bowman SOI 

Mayor  v,  Colgate C29 

Mayor  v.  Hughes  430 

Mayor  v.  Lefferman   449,  455 

Mayor  v.  Linck 181 

Mayor  v.  New  York 450 

McAfferty  v.  Hall   474 

McAllester  v.  Haden   262 

McAllister  v.  Hoti'man    502 

McAllister  v.  Smith    418 

McAllister  v.  Sprague 379 

McAndrew  v.  Telegraph  Co.  .  .  .  297 

McArthur  v.  Luce 450 

McAuley  v.   Carter    613 

McAuliff  V.  Parker 629,  631 

McBlain  v.  Cross   85 

McBratney  v.  Chandler    ......  284 

McBrazer  v.  Cohn   67 

McCabe  v.  Blymyre 402 

McCabe  v.  Gray   507 

McCabe  v.  Raney    635 

McCagg  V.  Woodman 5L'6 

McCall  V.  California   li'2 

McCall   V.    Capehart 163 

McCall  V.  Hampton 520 


Sec. 

MeCall  V.  Parker  33 

oNIcCandless  v.  Steel  Co 274,  281 

McCarthy  v.  Nash 145 

McCarty  v.  Carter   39,     46 

]\IcCarty  v.  Murray 66 

McCarty  v.  Woodstock  Iron  Co.     57 

65 

McCaull  V.  Graham 677 

McCawley  v.  Railroad  Co.  .288,  295 

McCay  v.  Railroad  Co 306 

McClain  v.  Davis    21,     24 

McClary  v.  Railroad  Co 48a 

McClay  v.  Hedges   474 

McClellan  v.  Bank 377 

McClellan  v.  Sanford   ..80,  82,  134 

McClintie  v.  Wise   508 

McClintock  v.  Laing 107 

McClure  v.  Briggs 039 

McClure  v.  Otrich   114 

McClure  v.  Rabeu    520 

McClure  v.  Railroad  Co 302 

McCollough    Iron    Co.    v.    Car- 
penter      619 

McConahey  v.  Griffy 134 

MeConnel  v.  Delaware   488 

McConnell  v.  Brillhart 88 

McConnell  v.  Kitchens    .  .  .  175,  178 
196,  198,  202 

McCord  v.  Williams    319 

McCormick  v.  Danville 612 

McCormick  v.  Littler 10,     II 

12,     22 

McCosh  v.  Crow 340 

McCoy  V.  Hoflman 38 

McCracken  v.  Hayward   .  .  .  528,  555 

565,  566 

McCracken  v.   San  Francisco.  .    3.52 

450 

McCraith  v.  Bank   123 

McCraney  v.  Alden   234 

McCrary  v.  Ruddick   458 

McCrea  v.  Purmont   98 

MeCrellis  v.  B.irtlett 11,  472 

McCullough  V.  Virginia  .  .  .560,  565 
McCurry  v.  Gibson   200 


823 


TABLE    OF    CASES. 


See, 

McDaniel  v.  Parks 602,  605 

McDonald  v.  Aufdengarter   .  .  .   234 

McDonald  v.  Beer   234 

McDonald  v.  Lynch 450 

McDonald  v.  Magruder   .  .  .  390,  434 

McDonald  v.  McCallon t)77 

IVIcDonald  v.  Morton 12 

McDonald  v.  Railroad  Co.  .043,  645 

McDonald  v.  Youngbluth 107 

McDowell  V.   Laev    352,  362 

McDuffee  v.  Railroad  Co.. 306,  325 
McEacherman  v.  Railroad  Co.  .    290 

McElmoyle  v.  Cohen   638 

McElpatrick  v.  Hicks   233 

McElroy  v.  Buck    85,     91 

McElroy  v.  Lewis   15 

McElroy  v.  Ludlum 103,   134 

McElroy  v.  Seery   88,     97 

McElroy's  Case 5 

McFarland  v.  Bank 233 

McFadden  v.  Railroad  Co 288 

McGahey  v.  Virginia 528 

McGarry  v.  Nicklin   240,  418 

McGatrick  v.  Wasson 188 

McGavoek  v.  Whitford 72 

McGilvery  v.  Moorhead   377 

McGinnis  v.  Commonwealth ...      10 

McGinnis  v.  Fernandes 1 12 

McGinnis  v.  Loring 388 

McGovern  v.  Hern 88 

McGovern   v.    Ins.   Co 225,  226 

McGowen  v.   West   114 

McGratli  v.  Merwin    189 

McGregor  v.   Balch    368 

McGregor  v.  Gardner   622 

McGregor  v.  McGregor   134 

McGregor  v.  Railroad  Co 497 

McGuire  v.  Campbell    206 

McHose  V.  Fulmer 682 

McHquhan  v.  Taylor 577 

Mclntyre  v.  Parks   398,  409 

413,  447 

Mclntyre  v.  Yates 229 

McKaney  v.  Cooper    26,     67 

McKay  v.  Carrington   596 


Sec. 

McKay  v.  Railroad  Co 293 

McKee  v.  Jones   412 

McKee  v.  Judd 518 

McKeegan  v.  O'Neil    467 

McKenna  v.  Merry   41,  43,  50 

McKenney  v.  Harvie 480 

McKennon  v.  McEwan 685 

McKenzie  v.  Bank 128 

McKenzie  v.  1"  arrell   95 

McKenzie  v.  Linen  Co 428 

McKibben  v.  EUingsen 406 

McKinnell  v.  Robinson 447 

McKinnes  v.  Estes 185 

McKinney  v.  Whiting -.  158 

McKissick  v.  McKissick 416 

McLain  v.  Davis 14 

McLane  v.  Creditors   398 

McLaren  v.  Clark    231 

McLaren  v.  McMartin   634 

McLaughlin  v.  Austin    127 

McLaughlin  v.  Piatt 148 

McLendon  v.  Frost   122 

McLeran  v.  Benton   631 

McMaster  v.  Vernon 370 

McMichael  v.  Carlyle   628 

McMillan  v.  Mallay 477 

McMillan  v.  Railroad  Co 290 

McMillan  v.   Sprague    560 

McMinn  v.  Phipps 165 

McMullin  V.  Hoffman 321 

McMullen  v.  Rafferty   634 

McMullen  v.  Winfield,  etc.  Asso.  635 

McNeil  V.  Hill   513 

McNichol  V.  U.  S.  etc.  Asso. .  . .  404 

McQueen  v.   Bank    445 

McQueen  v.   Fox    485 

McTague  v.  Association    596 

MeWhinne  v.  Martin 105 

Meacham  v.  Dow   279 

Meacham  v.  Ins.  Co 18,  20 

Mead  v.  Phoenix  Ins.  Co 63 

Meaker  v.  Fiero 216 

Mechanic's  Bank  v.  Levy 502 

Mechanics  Build.  Asso.  v.  Whit- 
acre  632 


824 


TABLE    OF    CASES. 


Sec. 

Medbury  v.  Watrous    38,  482 

Mederas  v.  Hill   569,  573 

Medvvay  v.  Needham 178,  400 

Meech  v.  Lee 49?» 

Meflin  v.  Milton 133 

Meguire  v.  Corwine   279,  280 

Mehlhop  V.  Rae   60 

Meincke  v.  Talk 146 

Melchert  v.  Telegraph  Co 245 

Melchoir  v.  McCarty 192,  205 

Melins  v.  Duncan 449 

Mellen  v.  Whipple  ...353,  356,  359 

Meller  v.  Goldsmith   700 

Mellet  V.   Bateman    635 

Mellon  V.  Dawson   92 

Melone  v.  Keener 128 

Melville  v.  DeWolf   660 

Memphis  v.  United  States  ....  555 
Memphis,   etc.   Railroad   Co.   v. 

Neighbors   596 

Memphis  Nat.  Bank  v.  Sneed. .      14 

Menkins  v.  Lightner   8 

Mentone  v.  Athawes  575 

Mentz  V.  Newmiller   83,     87 

Mentzer  v.  Telegr.   Co 693 

Mercer   v.   Kelso    7 

Mercer  County  v.  Hubbard  ....  224 
Merchants'  Bank  v.  Rawls.445,  511 
Merchants'  Bank  v.  Spalding.  .    398 

415 
Merchants'  Desp.  Co.  v.  Smith.  .580 
Merchants',   etc.     Bank    v.   Do- 

shiell 660 

Merchants',  etc.  Ins.  Co.  v.  Mc- 

Lain   .599 

Merchants'     Fire     Ins.     Co     v. 

Grant    65 

Merchants'  Nat.  Bank  v.  Bank.   450 

Meredith  v.  Crawford 62 

Meredith  v.  ]\Ieigh 152 

Meridian   Water   Co.   v.   Schul- 

horr 274 

Meriwether  v.  Smith 1!;2 

Meroney  v.  Association  .  .  .220,  419 
Merriam  V.  Cunningham. 41,  44,    47 


Set-. 

Merriam  v.  Hassam   630 

Merriam  v.  Lumber  Co 364 

Merriam  v.  Stearns   183,  192 

Merrill  v.  Bell    570 

Merrill  v.  Downs 193 

Merrill  v.  Greon    *J52 

Merrill  v.  Mclntire   177 

Merriman  v.  Chapman   612 

Merriman  v.   McManus    132 

Merritt  v.  Earle   187,  615 

Merritt  v.  Gumaer    6 

Merritt  v.  Ins.  Co 20 

Merritt  v.  Robinson    597 

Merritt  v.  Wittich    698 

Merryweather  v.  Nixan. .  .  .  394,  434 

439 
Mersey,  etc.  Co.  v.  Naylor  ....    594 

Mervine  v.  Sailer 278 

Merwin  v.  Austin    508 

Merwin  v.  Chicago    517 

Merz    Capsule    Co.    v.    Capsule 

Co 320,  323,  329 

Messenger  v.  Railroad  Co 306 

Messmore  v.  Cunnington   91 

Messmore  v.  Lead  Co 682,  685 

696,  698 

Metcalf  V.  Kincaid   515,  518 

Metcalf  V.  Waterman  638 

Methven  v.  Heat  &  Power  Co.  .   508 

Metson  v.  Roath    52 

Mette  V.  Feltgen   57 

Meux  V.   Bell    508 

Mexican  International  Banking 

Co.  V.  Lichtenstein 272,  330 

Meyer  v.  Estes    312,  368 

Meyer  v.  Gra'fBn 125 

Meyer  v.  Lowell L*52 

Meyer  v.  Muscatine 208 

Meyer  v.  Richards 398 

Meyer  v.  State 244 

Michael  v.  Albright 391 

Michaelis  v.  Wolf   C'43 

Michaels  v.  Railroad  Co 583 

INlichigan  Central  R.  R.  Co.  v. 

Curtis 683 


825 


TABLE    OF    CASES. 


Sec. 
Michigan    Mut.    Ben.    Asso.    v. 

Eolfe 269 

Michigan  Mut.   L.    Ins.    Co.    v. 

Naugle 19,     20 

Middleboro  v.  Rochester 13 

Middleburg  College  v.  Chandler     43 
Middletown  Bank  v.  Jerome.  .  .    212 

Mighell  V.  Dougherty   146 

Miles  V.  Alford  Estate  Co.  .82,  137 

Miles  V.  Lingerman 61 

Miles  V.  Mcllwraith 428 

Miles  V.  Stevens 571 

Miles  V.  Thorn 284 

Milks  V.  Eich  128 

Millard  v.  Baldwin 356,  363 

Mill  Dam  Foundry  v.  Hovey  .  .  .  6C0 

Miller  v.  Ammon   173,  175 

Miller  v.  Ball  105 

Miller  v.  Bledsoe 521 

Miller  v.  Campbell 405 

Miller  v.  Cook 94 

Miller  v.  Craig 7 

Miller  v.  Eldredge 110,  479 

Miller  v.  Fenton 394,  437 

Miller  v.  Gittings 258 

Miller  v.  Goddard 474,  602 

Miller  v.  Ins.  Co 206,  274 

Miller  v.  Lorentz 103 

Miller  v.  Phillips   477,  640 

Miller  v.  Post 175,  178,  197 

Miller  v.  Eace 504,  512 

Miller  v.  Eailroad  Co 224,  541 

Miller  v.  Sims    60 

Miller  v.  Smith    41 

Miller  v.  State   541 

Miller  v.  Tiifany   ....390,  417,  420 

Miller  v.  Wilson 101.   115,  403 

Miller  v.  Woodward   572 

Miller's    Appeal 460 

Millett  V.  People   4 

Milligan  v.  Pollard   14 

Milliken  v.  Pratt   395,  397 

401,  408,  420 

Mills  V.  Brown 129 

Mills  V.  Graham    69 


Sec. 

Mills  V.  McDaniels    449 

Mills  V.  Mills   284 

Mills  V.   Williams    ...187,  240,  241 
Mills  V.  U.  S.  Printing  Co. 336,  341 

Milne  v.  Field    646 

Milne  v.   Huber    416 

Milne  v.  Moreton 406 

Milnes  v.  Duncan 501 

Milne's  Appeal   629 

Milroy  v.  Iron  Co 521 

Miltimore  v.  Railroad  Co 582 

Milwaukee,    etc.    E.    E.    Co.    v. 

Smith   398 

Minard  v.  Mead   89 

Miner  v.  Bradley   448,  599 

Mineral  Point  Railroad  v.  Bar- 
ron       419 

Minich  v.  Huff 129 

Mining  Co.  v.  Fraser   697 

Minneapolis,  etc.  Manuf.  Co.  v. 

Manuf.  Co '. 641 

Minneapolis  Harvest  Works  v. 

Kaessner   216 

Minnesota  v.  Barber 549 

Minnesota  Lumber  Co.  v.  Coal 

Co 254 

Minock  v.  Shortridge   27 

Mintern  v.  Laru 534 

Mirebach  v.  Bank    14 

Miskey's  Appeal 25 

Misner  v.  Knapp   262 

Mississippi,    etc.    E.    R.    Co.   v. 

Green 576 

Mississippi  Logging  Co.  v.  Eob- 

son   573 

Missouri,    etc.    E.    E.    Co.    v. 

Fagan 617 

Missouri,  etc.  E.  E.  Co.  v.  Ha- 

ber 549 

Missouri  Pac.  E.  E.  Co.  v.  Iney  288 
Missouri  Valley  L.  Ins.  Co.  v. 

Sturges 267 

Mitchell  V.  Banlc   401 

Mitchell  V.  Lapage 340,  457 

Mitchell  V.  Lyman   208,  220 


826 


TABLE    OF    CASES. 


Sec. 

Mitchell  V.  Reynolds  311 

Mitchell  V.  Kingman 9 

Mitchell  V.  fScott   205 

Mitchell  V.  Smith    196 

Mitchell  V.  Vance   281 

Mittenhal  v.  Mascagni 396,  420 

Mix  V.  Ins.  Co 230 

Mixer  v.  Howaith    146,  694 

Mobile  V.   Watson    555 

Mobile,  etc.  E.  R.  Co.  v.  Felrath  494 
Mobile,  etc.  R.  R.  Co.  v.  Gilmer  689 
Mobile,  etc.  R.  R.  Co.  v.  Hop- 
kins       295 

Mobile,  etc.  R.  R.  Co.  v.  People  302 

Modisett  v.  Johnson   667 

Mogul    Steamship    Co.    v.    Mc- 
Gregor    335,  341 

Mohr  V.  Miesen   249 

Mohr  V.  Tulip    12 

Moley  V.  Brine   60 

Mollyneaux  v.  Wittenberg  ....    316 

Molton  V.  Camroux   22,     25 

Monaghan  v.  Ins.  Co 66 

Monaghan  v.  School  Dist 470 

Monroe  v.  The  Iowa   410 

Monson  v.  Bragdon   678 

Monson  v.  Williams    444 

Montague  v.   Flocton    677 

Montague  v.  Garrett   137,  479 

Montague  v.  Lowry 324 

Montgomery  v.  Edwards.  .  .100,  114 

Montgomery  v.    W  right    402 

Monumental  Asso.  v.  Herman .  .      67 

Moody  V.  Leverich   603 

Moody  V.  Longfellow 492 

Moody  V.  Walker 446 

Moody  V.  Wright 518 

Mooney  v.  Iron  Co 475 

Moore  v.  Appleton    437 

Moore  v.   Bruner    391 

Moore  v.  Carter   699 

Moore  v.   Chenault    97 

Moore  v.  Church    406 

Moore  v.  Eddowes   450 

Moore  v.  Garwood 44S 


See. 

Moore  v.  Hershey 14,     24 

Moore  v.  Holcombe   508 

Moore  v.  House   363 

Moore  v.  Mahaska  County.  ...   281 

Moore  v.  Martin    561 

Mooie  V.  Murdock 184,   187 

Moore  v.  Nat.  Bank 357,  5'j8 

Moore  v.  Rogers    597 

Moore  v.  Shields    445 

Moore  v.  Taylor   87,     99 

Moore,    etc.    Hardware    Co.    v. 

Hardware    Co 316 

Moores  v.  Bricklayers'  Union.  .    335 

341 

Moorhouse  v.  Colvin 4C6 

Moot  V.  Association   647 

Moran  v.  Dunpliy   337 

More  V.  Bennett   313,  ;i21 

More  V.  Clymer    180,  184,   185 

Moreau  v.  Dumagene    620 

Moreau  v.  Edwards 319 

Morehead  v.  Wotlyus   Ill 

Moreland  v.  Davidson 458 

Morford  v.  White   464 

Morgan  v.  Bailey 183 

Morgan  v.  Battle 105 

Morgan  v.  Hetler    651,  655 

Morgan  v.  Palmer 452 

Morgan's     Steamship     Co.     v. 

Board   547 

Morienthal  v.  JNlosier    634 

Morier  v.  ilorgau   443 

Morin  v.  Martz   98 

Morley  v.  Attenberough 448 

Morley  v.  Railroad  Co. 533,  556,563 

Morrill  v.  Aden   65 

Morrill  v.  Mackmau   Ill 

Morrill  v.  Moyes   515,  518 

Morrill  v.  State   551 

Morris  v.  Assurance  Co 16 

Morris  -v.  Burdett   423 

Morris  v.  Cleasby 87 

Morris  v.  Colman    317 

Morris  v.  Fox 669 

Morris  v.  Hale 330 


827 


TABLE    OF    CASES. 


Sec. 

Morris  v.  Manuf.  Co 312 

Morris  v.  Mayor 456 

Morris  v.  Osterhout   125 

Morris  v.  Wilbaux   399 

Morris  Canal  v.  Van  Vorst  . .  .  379 
Morris   Run   Coal   Co.   v.   Coal 

Co 321,  324,  331 

Morrison  v.  Baker 122 

Morrison  v.  Davis 583,  616 

Morrison  v.  Dingley   148 

Morrison  v.  Herrick .  105 

Morrison  v.  Markham    231 

Morrison  v.  Poyntz 391 

Morrissey  v.  Broomal  621 

Morrissey  v.  Kinsey 125,  132 

Moritz  V.  Larsen   474 

Morrow  v.  Campbell   580 

Morrow  v.  Higgins   99 

Morrow  v.  Robinson   624 

Morrow  v.  Starke   ....._ 377 

Morse  v.  Bellows  377 

Morse  v.  Brackett 448 

Morse  v.  Ely   62,  64 

Morse  v.  Gould   558,  560 

Morse  v.  Machine  Co 316 

Morse  v.  West   198 

Morse  v.  Wheeler    52 

Morse  Machine  Co.  v.  Morse..  318 

328,  329 

Mortmer  v.  Capper   672 

Morton  v.  Dean   92 

Morton  v.  Naylor    526 

Morton  v.  Tibbett 148,  151 

Morton  v.  Stewart   28,  49 

Morton  v.  Telegr.  Co 693 

Mory  V.  Michael 358 

Mosely  v.  Baker 584 

Mosely  v.  Fullerton 392 

Mosely  v.  Vanhooser 185 

Moses  V.  Arnold 488 

Moses  V.  Association    237 

Moses  V.  Lawrence  Co.  Bank .  .  96 

Moses  V.  Macpherlan    5Ul 

Moses  V.  Stone 482 

Mosher  v.  Railroad  Co 294 


See. 

Moslin  V.  Railroad  Co 288 

Moss  V.  Culver   102 

Motley  V.  Ins.  Co 353 

Mott  V.  Rowland. 240,  241,  396,  399 

Mott  V.  Water  Co 349,  350 

Moulding  v.  Trussing 91 

Moule  V.  Garrett   440 

Moulton  V.  Harris   105 

Moulton  V.  McEwen 473,  651 

652,  655,  6Ub 

Moulton  V.  Railroad  Co 617 

Mount  V.  Waite  500 

Mountstephen  v.  Lakeman  ....   635 

Mournin  v.  Trainer 105 

Mowry  v.  Bishop   208 

Moyer  v.   Cantieny    287 

Moyer  v.  Shoemaker   446 

Mozell  V.  Burnett 570 

Mozings   V.   Ross 634 

Mudge  V.   Oliver 340,  457,  478 

Mudgett  V.   Clay 105 

Mugler  V.  Kansas 646 

Muir  V,   Schenck 508 

Muldoon  V.  Railroad  Co 295 

Mulhall    V.    Quinn 515,518 

Mullalieu   v.    Hodgson 171 

Mullen  V.   Reed 404 

Muller   V.   Riviere 128 

Mullett   V.   Mason 685 

Mulligan  v.  Railroad  Co 290 

Mullin   V.    Bloomer 597 

IvjLumford    v.    Canty 258,  402 

Mumf ord   v.    Tolan 229 

Mun  V.  Commission  Co 212 

Munday   v.   Kaufman 29 

Mundorff   v.    Kilbourn 466 

Mundy    v.    Joliffe 105 

Munn    V.    Illinois 307,532 

538,  539 

Munro  v.   Butt 473,  477 

Munsell   v.   Temple 519 

Munsey   v.   Butterfield 319 

Murdfeldt  v.  Railroad  Co 672 

Murdock    v.    Einney 508 

Murdock  v.  Jones 646 


S2S 


TABLE    OF    CASES. 


Sec. 

Murdock  v.  Railroad  Co 293 

Murdock    v.    Walker 334,336 

Murkley  v.  Whitney 103 

Murphy  v.  Bank 380 

Murphy   v.    Reed 267 

Murphy  v.   San  Luis  Obispo..  278 

Murphy  v.  State 530 

Murphy  v.  Weil 368 

Murray   v.    Bond 198 

Murray  v.  FlaveTl 360 

Murray   v.    Lardner 512 

Murray  v.  Lylburn 608 

Murray  v.  Marshall 585 

Murray  v.   Wakefield 286 

Murrell    v.    Whiting 687 

Muser  v.  Express  Co 289 

Musselman    v.    Stover 91 

Mustard   v.   Wohlford 26,  27 

61,  64,  69,  71 
Mutual    Ben.    L.    Ins.    Co.    v. 

Davies 20 

Mutual  Ins.  Co.  v.  Cohen 401 

404,  420 

Mutual  L.  Ins.  Co.  v.  Allen 267 

Mutual  L.  Ins.  Co.  v.  Hunt .  14,  22 
Mutual    Life   Ins.    Co.    v.    New 

i;ork 456 

Mutual  Life   Ins.   Co.   v.  Terry     19 

Mutual  L.  Ins.  Co.  v.  Walden. .  19 

Mutual  Sav.  Inst.  v.  Enslin .  .  .  449 

Muzzy    V.    Shattuck 584 

Meyer   v.   Estes 649 

Myer   v.   Cole 485 

Myers    v.    Bank 428 

Myers   v.   Gross 667 

Myers  v.  Knabe 22 

Myers  v.  Munson 85 

Myers  v.   Sanders 61 

Myers  v.  Smith 4b5 

Mygatt  V.  Tarbell 701 

Mynard   v.    Railroad   Co 288 

Myrick    v.    Dame 377,  381 

Nace  V.  Boyer 14 

Mash  V.   Jewett 67 


See. 

Nash  V.  Page 538 

Nash    V.     Skinner 368 

Nash   V.   Town 599 

Nashville  Trust  Co.  v.  Bank..  506 
Natches    Build.    &   Loan    Asso. 

V.  Shields 219 

Nat.  Cordage  Co.  v.  Sims 87 

National   Bank   v.   Bruhn 232 

National  Bank  v.  Danforth...  229 
National  Bank  v.  Fink... 283,  517 
National    Bank   v.   Matthews..    175 

National  Bank  v.  Moore 14 

National   Bank  v.  Morris 402 

National  Bank  v.  Tappan ....  428 
National  Bank  v.  Whitney.  .  .  .  175 
National   Ben.  Co.  v.  Hospital 

Co 312,  314 

National  B.  &  L.  Asso.  v.  Bra- 

han    417 

National     Exchange     Bank     v. 

McLoon .  .52i,    522,    524,526 

Nat.  Fire  Ins.  Co.  v.  Rowe 80 

National  Harrow  Co.  v.  Quick  320 
National    Lead    Co.    v.    Paint 

Store 323 

National     Mut.     Build.     &     L. 

Asso.  V.  Ashworth 417,  419 

National     News     Tel.     Co.     v. 

Western  Union  Tel.  Co 339 

National    Protection    Asso.    v. 

Cummins 335 

National      Security      Bank     v. 

Cushman 503 

National  Trust  Co.   v.   Gleason  446 

495 
National  Union  v.  Marlow ....   404 

Neal   V.    Berry 51 

Neal  V.  Hines 312 

Neal   V.    Saunderson 615 

Neate  v.   Harding 487 

Nebraska  Tel.  Co.  v.  State 298 

Meeker    v.    Harvey 348 

Meeker  v.  Koehn 53 

Needles   v.    Burk 452 

Needles  v.  Needles 518 


829 


TABLE    OF    CASES. 


Sec. 

NeflF  V.  Landis 69 

Neff  V.   Wooding 427 

Neil   V.   Bank 417 

Nelson    V.    Boynton 123,   125 

127,  132 

Nelson  v.  Imp.  Co 480 

Nelson    v.    Moose 687 

Nelson  v.  Plimpton,  etc.  Co. . . .   606 

Nelson  v.   State 188 

Nerot  V.  Wallace 568 

Nesbit    V.    Works 125 

Nester  v.  Brewing  Co.  320,  321,  331 

Neuman  v.  Schroeder 124 

Neustadt  v.  Hall 281 

New  Albany,  etc.  Co.  v.  Lewis.  423 
New  Albany,  etc.  R.  R.  Co.  v. 

McCormick 302 

Newark  Sav.  Inst.  v.  Forman..    560 

Newberry  v.  Wall 83 

New  Brunswick  Steamboat  Co. 

V.  Tiers 616 

Newburgh,    etc.    Turnpike    Co. 

V.    Welter 534 

Newbury  v.   Armstrong 96 

Newby  v.  Hill 508 

Newcomb    v.    Clark 89,     94 

Newcomb  v.  Ins.  Co 474 

Newcomb  v.  Raynor 375 

Newcome  v.  Davenport 456 

Newell   V.   Banl< 208,  232 

Newell  V.   Higgins.  .  .  171,   700,  701 

Newell   V.    Meyendorf 312 

New  England,  etc.  Co.  v.  Spit- 

ler 12 

New  England,  etc.  Co.  v.  Wor- 
sted Co 97,  148 

New    England    Express    Co.    v. 

Railroad  Co 306 

New    England    Mortg.    Co.    v. 

Baxley 228 

Islew    England    Mortg.    Co.    v. 

Gay 228,  239 

New    England    Mortg.    Co.    v. 

McLaughlin 399,  420 

Newhall  v.  Railroad  Co 510 


Sec. 

Newhall  v.  Wyatt 504 

New  Hampshire  E.  Ins.   Co.  v. 

Noyes 46 

New  Home  L.  Asso.  v.  Hagler.      19 
New  Jersey  Steam  Nav.  Co.  v. 

Bank 410 

Newman  v.  Kershaw 240,  241 

Newman  v.   Morris 139 

Newman    v.    Nellis 80,    100,  103 

Newman   v.    Reagan 618 

Newman  v.   Sheriff 398 

Newman  v.  Supervisors 456 

Newman  v.  Telegr.  Co 693 

Newport  v.  Saunders 423 

New  Orleans,  etc.  R.  R.  Co.  v. 

Turcan 457,  483 

New  Orleans  Gas  Co.  v.  Louis- 
ville Light  Co 303,  547,  550 

New  Orleans  Water  Works  Co. 

V.  Sugar  Refining  Co 531 

New     South     Water      Co.     v. 

Vvythes 676 

Newton  v.  Bronson 100 

Newton  v.  Ins.  Co 17 

Newton  Manuf.  Co.  v.  White .  .   464 

Newton  v.  Pence 391 

JNewton   v.    Rowse 588 

New  York  Cent.  R.  R.  v.  Lock- 
wood  288,  295,  587 

Mew  York  and  Erie  R.  R.  Co. 

V.  Winter 292 

New    York,    etc.    Ins.    Co.    v. 

Aitkins 419 

New   York,   etc.    R.    R,    Co.   v. 

Bennett 293 

Mew   York,   etc.    R.    R.    Co.   v. 

New  York 549 

New   York,   etc.    R.    R.    Co.    v. 

Winans 303 

Mew  York  ex  rel.  Pennsylvania 

R.  R.  Co.  V.  Knight 182 

New  York,  etc.  Tel.  Co.  v.  Dry- 
burg  297 

Mew    York    Life    Ins.    Co.    v. 
Rosenheim 266 


830 


TABLE    OF    CASES. 


Sec. 
Niagara      Fire      Ins.      Co.      v. 

Greene 134 

Nibbe  v.  Brauhn 6G4 

Nibert  v.  Baghurst.  .  .  104,  183,   192 

Niblo   V.   Biusse 659 

Nicewander  v.   Nicewander ....        5 

Nicholas  v.  Kershear 7 

Nicholas  v.   Railroad  Co 288 

Nichols   V.    Allen 128 

Nichols  V.  Johnson 88 

Nichols  V.   Fearson 212 

Nichols   V.   Mantyn 618 

Nichols  V.  Marsland 580 

Nichols  V.   Nowling 394,  437 

Nichols  V.  Railroad  Co 295 

Nichols  V.  Vinson 483 

Nicholson  v.  Bower 152 

Nicholson  v.  Railroad  Co 325 

Nicholson   v.    Spencer 41,     50 

Nicholson    v.    Wilborn 41 

Nickerson  v.  Howard 519 

Nickerson  v.  Hydraulic  Co.  .  .  .    349 

Nickerson   v.    Spindell 483 

Nickles  v.  Asso 240 

Niell    V.    Morley 25,  472 

Niemeyer  v.  Wright 178 

Nightingale    v.    Withington.  .  .      27 

47,  470 

Niland  v.  Murphy 80 

Nimick  v.  Ins.  Co 18 

Niver    v.    Best 274 

Noble  V.  Adams 593 

Noble  V.   James 640 

Noel   V.   Karper 8 

Noland  v.  Whitney 643 

Nolte    V.    Libbert ..66,355 

Norcross  v.   Norcross 585 

Norden  v.  Jones.  .464,  487,  489,  490 
Nordenfelt   v.    Maxim    Norden- 
felt    Guns    and    Ammunition 

Co 314 

Nordholt  v.  Nordholt 30 

Nordyke    v.    Kehlor 568 

Norfolk,  etc.  R.  R.  Co.  v.  Mar- 
shall      582 


Sec. 

Norman  v.  Phillips 152 

Norris  v.  Railroad  Co 615 

Norris   v.    School    Dist 640,666 

Norris  v.   Sowles 402 

North  V.  Forest   144 

North    V.    Mendel 85,     91 

North  V.  Nichols 442 

North    V.    Wakefield 3/8 

Northern    Pac.    R.    R.    Co.    v. 

Adams 295 

Northern    Pac.    R.    R.    Co.    v. 

Pausen 292 

Northern      Securities      Co.      v. 

United  States 324 

Northern  Trust  Co.  v.  Markell  674 

Northhampton  v.  Elwell 363 

Northrop   v.   Graves 453 

Northrup   v.   Phillips 330 

Northwestern       Ins.       Co.       v. 

Blankenship 22 

Northwestern  Mut.  L.  Ins.  Co. 

V.  Hazelett 20 

Norton    v.    Blinn 321,  330 

Norton  v.   Faucher 665 

Norton  v.  Highleyman 452 

Norton  v.  Marden   450 

Norton  v.  Paxton 5 

Norwegian    Plow    Co.    v.   Haw- 
thorn      156 

Norwood  V.  Faulkner 210 

Noyes  v.  Chapman  Drake  Co..   700 

Noyes  v.   Humphreys 121 

Noyes  v.  Loring 464 

Noyes   v.    Spaulding 255 

Nugent  V.  Smith 615 

Nugent  V.   Teachout 479 

Nugent   V.    Wolfe 96,  129 

Nunez  v.  Morgan 114 

Nye   V.    Grand    Lodge 267,268 

Oakdale  Manuf.  Co.  v.  Garst.  .    312 
314,  322 

Oakes  v.  Water  Co 304 

Oakley  v.  Aspinwall 370 

Oakley  v.  Morton 570 


831 


TABLE    OF    CARES. 


See. 

Gates  V.   Buckwith 631 

Gates  V.  Hudson 497 

Gbear  v.  Bank 638 

G'Brien  v.   Goslin 55 

G'Brien  v.  Greenbaum 172 

G'Brien  v.   G'Brien 627 

G'Brien   v.    Prietenbach 274 

G'Brien  v.  Society 690 

G'Brien  v.  Vail 585 

G'Brien  v.   Young 563 

G'Bryan  v.   Fitzgerald 205 

G'Conley  v.  Natches 445 

G'Connell    v.    Lewiston 191 

G'Conner  v.   State 200 

G'Connor   v.   Tyrrell 671 

G'Dea  v.  Winona 655 

G'Dell  V.  Rogers 59 

Gden   v.   Elliott 430 

Gdom  V.   Mortg.  Co 417 

Gdom    V.    Riddick 24 

G'Donnell  v.  Leaman 97 

O'Donnell  v.   Sweeney 178,  202 

G'Fallon   v.    Boismenn 445 

Gffutt  V.   Flagg 402 

Ggden  v.  Fossick 677 

Ggden  v.   Gibbons 534 

Ggden  v.  Maxwell 452 

Ggden  v.  Peters 170 

Ggden   v.   Sanders 555 

G'Grady  v.  G'Grady 108 

Ggsbury  v.   Ggsbury 106 

Ghio  V.  Frank 224 

Ohio  Ins.  Co.  v.  Ross 508 

G'Kelly  v.  Williams 555 

Gld  Colony  R.  R.  Co.  v.  Evans     98 

Glive  V.  Glive 446 

Gliver  v.   Gilmore 312 

Gliver  v.  Hunting 92 

Gliver  v.  Ins.  Co 98 

Oliver  V.  McClellan 69 

Gliver    v.    Shoemaker 221 

Glmstead  v.   Beale 474,  666 

Olmstead  v.   Burke 697 

Glmstead  v.   iveyes 267 


See. 

Olmsted  v.  Hotailing 503 

Omaha     Consolidated     Vinegar 

Co.  v.  Burns 655 

Omaha,  etc.  Co.  v.  Tabor 492 

Omaha  Loan  and  Trust  Co.  v. 

Hanson 206 

Omohundro   v.   Gmohundro.  .  .  .    641 

O'Neal   V.    Board 357 

O'Neal  V.   King 644 

O'Neil  V.  Behanna 336 

O'Neil   V.   Cram 91 

O'Neil  V.  Iron  Co 300 

O'Neil  V.  Mining  Co 146 

O'Neill  V.  Sinclair 198 

Ontario  Salt  Co.  v.  Salt  Co 322 

Oppenheim  v.   Water  bury 91 

Oppenheimer  v.  Express  Co..  289 
Orange  County  Bank  v.  Brown  289 
Orcutt  V.  Nelson. 340,  409,  457,  478 

Organ   v.   Stewart 81 

O'Regan  v.  Cunard,  etc.  Co..  410 
Oregon     Steam     Nav.     Co.     v. 

Winsor 303,  308,  309 

310,  312,  313,  316 

Orendorff  v.  Express  Co 288 

Ormerod    v.    Dearman 284,  286 

O'Rourke  v.   G'Rourke 412 

Orr  V.  Commission  Co 698 

Grr  v.  Ins.  Co 345 

Orr  V.  Meek 200 

Ortloff   V.   Klitzke 145 

Ortt  V.  Railroad  Co 290 

Gsborn  v.  Guy's  Hospital 465 

Osborn   v.   Phelps 88,     91 

Osborne  v.  Baker 87,     94 

Osborne  v.   Bank 240 

Osborne  v.  Ins.  Co 404 

Osborne   v.    Kimball 137 

Osborne  v.  Lawrence 641 

Osborne  v.  Williams 330 

Oscanyan  v.   Arms   Co 282,  284 

285,  408 

Osgood    V.    Bender 254,398 

Osgood    v.    Groning 569,  573 


RP,2 


TABLE    OF    CASES. 


Sec. 

O'Shea  v.  Lead  Co 171,  172 

Oshkosh    Water   Works   Co.   v. 

Oshkosh 560,  565 

Osier  v.  Hobbs 425 

O'Sullivan   v.    Overton 87 

Othemway  v.   Zekind 198 

Otis  V.  Gregory 403 

Otis  V.  Railroad  Co 300 

Otis  Steel  Co.  v.  Local  Union.  .   336 

Otto  V.  Doty 8 

Otto  V,  Durege 212 

Outhouse   V.    Allen 463 

Overton  v.   Banister 67 

Owen  V.  Long 27,     52 

Owen   V.    Partridge 340 

Owens  V.  Railroad  Co 300 

Oxendale  v.   W'etherell 478 

Oxford   V.   Columbia 628 

Oxley   V.   Tryon 27 

Pacific  Express  Co.  v.  Black..    693 
Pacific  Express  Co.  v.  Wallace.   288 

289 

Pacific  Factor  Co.  v.  Adler 320 

Pacific  Guano  Co.  v.  Mullen . .   202 

Pacific  R.  R.  Co.  v.  Seeley 302 

Packard   v.    Taylor 582 

Packer  v.  Benton 125 

Packer   v.    Steward 81 

Paddock  v.  Stout 664 

Padniore  v.   Gunning 466 

Paducah  Lum.  Co.  v.  Water  Co.  349 

Pangburn  v.  Westlake 173 

Pa.  Railroad  Co.  v.  Bray 293 

Paine    v.    Lester 406 

Paine   v.    Hutchinson •.  .  .   672 

Paine  v.  McGinchey 464 

Paine  v.  Mellor 672 

Palm  v.  Railroad  Co 473 

Palmer    v.    Bates 283,517 

Palmer  v.   Breen 641 

Palmer  v.  Railroad  Co 617 

Palmer  v.  State 542 

Palmer  v.  Stebbins 303 

Palmer   v.    Stephens 89 


See. 

Palmer's  Case 119 

Paola  Gas  Co.  v.  Glass  Co 697 

Paradine  v.  Jane 573 

Parcell  v.   McComber 474 

Paris  V.  Strong 134 

Parish  v.  United  States 695 

Parish  v.  Webster 330 

Parish  v.  Wilson 119 

Park   V.   Druggists'   Asso 324 

Parker  v.  Bricklayers'  Union..    335 

Parker    v.    Cousins 208 

Parker   v.   Parker 84 

Parker   v.   Piatt 640,  651 

Parker  v.   Railway   Co 452,  497 

Parker  v.  Steed 477 

Parker  v.  Syracuse 524 

Parker  v.  Taintor 480 

Parkhurst  v.  Van  Cortland ....     86 

Parmalee  v.   Wilks 188 

Parmelee  v.  Adolph 597 

Parmelee  v.  Lawrence 378 

Paquin  v.  State  Board 200 

Parr  v.   Brady 403 

Parsell   v.   Stryker 466,  667 

Parsons   v.    Babcock 234 

Parsons  v.   Hill 66 

Parsons    v.    Loucks 146 

Parsons   v.   Monteath 615 

Partee  v.  Silliman 398,  419 

Parton    v.    Crofts 98 

Pass  V.  Grenada  County 452 

Pass  V.  Security  Co 228 

Passaic    Print    Works    v.    Dry 

Goods  Co 315 

Passenger    v.    Thorburn 685 

Passmore  v.   Telegraph   Co....    297 

Patchin    v.    Cromack 26,     27 

Pate  V.   Wright 192 

Paterson  v.   Paterson 465  ■ 

Pateshall  v.  Tranter 612 

Patnote  v.  Sanders 4/4 

Patrick   v.   Railroad   Co... 597,  621 

Pattee  v.  Greely 183,   195,  196 

Patten    v.    Hicks 108 

Patterson  v.  Birdsall 235 


833 


TABLE    OF    CASES. 


See. 

Patterson    v.    Boehm 171,  701 

Patterson  v.  Caldwin 520 

Patterson   v.    Kentucky 547 

Patterson  v.  Lawrence 67 

Patterson  v.  Lippincott 66 

Patterson  v.   Manuf.   Co 621 

Patterson  v.  Martz 625 

Patterson's   Appeal 635 

Pattison    v.    Judd 640 

Paul   V.    Grimm 445 

Paul   V.   Smith 44 

Pawelski    v.    Hargreave 146 

Pawlet  V.    Sandgate 444 

Pawley  v.  Turnbull 646 

Paxton    V.    Newton 668,677 

Payne    v.    Mayor 515 

Payne  v.  Newcomb 228 

Payne  v.  Railroad  Co 343 

Payne  v.  Western,  etc.  Co....    315 

Peabody   v.   Kendall 7 

Peabody    v.    Norfolk 318,677 

Peabody  v.  Railroad  Co 293 

Peabody  v.  Speyers 255 

Peacock   v.   Bmder 53,     54 

Peacock   v.    Cummings 622 

Peacock  v.  Rhodes 512 

Pearce  v.  Brooks.  161,  104,  274,  409 

Pearce   v.    Foot 249,   251,  253 

Pearce  v.  Rice 249 

Pearl  v.  McDowell.  .  11,  12,  22,  471 

Pearsall  v.  Kingsland 237 

Pearson  v.  Carlton 37 

Pearson   v.   Cox 9 

Pearson   v.    Distilling    Co 411 

Pearson  v.   Skelton 437 

Pease  v.  Herst 377 

Peck  V.  Briggs 447 

Peck  V.   Burr 203 

Peck  V.  Ellis 437 

Peck   V,    Mayo 241 

Peck  V.   Randall 629 

Peck  V.  Stanfield 105 

Peck  V.   Vandemark 91 

Peebles  v.  Gay 388 

Peele  v.  Northcote 87 


Sec, 

Peet    V.    Hatcher 413 

Peevey  v.  Haughton 85 

Peik  V.  Railroad  Co.  .288,  295,  539 

Pelletier  v.   Courture 60 

Peltz    V.    Eichele 312 

Pemberton    Build.    L.    Asso.    v. 

Adams 67,  70 

Pembroke    v.    Thorpe 668 

Pence  v.   Langdon 597 

Pendenhaur  v.  Ins.  Co 20 

Penfold    V.    Ins.    Co 20 

Peninsular,  etc.  Co.  v.  Shand..  240 

Penn  v.  Bornman 173,  176,  178 

Penn  v.  Bowman 196 

Penn  v.  Smith 698 

Pennell   v.   Detfell 502 

Penngar  v.   State 178,  400 

Penniman's    Case 557 

Pennsylvania  Co.  v.  Fairchild.  421 
Pennsylvania    Railroad    Co.    v. 

Connell 294 

Pennsylvania    Railroad    Co.    v. 

Henderson 288 

Pennsylvania  R.  R.  Co.  v.  Len- 

hart 292 

Pennsylvania     R.     R.     Co.     v. 

Miller 541 

Penn  Mut.  L.  Ins.  Co.  v.  Trust 

Co 404,  420 

Pennypacker   v.    Jones 697 

Penrose  v.  Canal  Co 560 

Pensacola,  etc.  R.  .  Co.  v.  Brax- 
ton    450 

Peonage    Cases 174 

People  v.  Adams 272 

People    V.    Arendt 200 

People    V.    Armstrong 542 

People  V.  Barondess 347 

People    V.    Bartlett 568 

People  V.  Booth 254 

People  V.  Budd 538 

People  V.  Buffalo  Fish  Co 549 

People   V.    Buttling 188 

People  V.  Campbell 528 

People  V.  Cipperly 542 


834 


TABLE    OF    CASES. 


Sec. 

People  V.   Coler 2,  4,  549 

feople   V.   Comptroller 426 

People  V.  Dayton 283 

People  V.  Dyeker 270 

People  V.   Eastern 567 

People  V.   Fallon 263 

People  V.  Folks i 

People  V.  Foundry  Co 321 

People  V.  Gas  Light  and  Coke 

Co 307,  535 

People  V.  Gas  Trust  Co 320,  323 

People  V.  Gillson 4,  271 

People   V.    Girard 542,  543 

People  V.  Gordon 629 

People  V.  Grout 4 

People    V.    Guthrie 538 

People  V.  Havnor 188 

People  V.  Hawkins 549 

People  V.  Holden 351 

People   V.   Hughes 347 

People  V.   Ingersoll 129 

People  V.  Ins.  Co 576 

People  V.  Live  Stock  Exchange  301 

People  V.  Manning 475,  589 

People  V.  Milk  Exchange .  .  320,  323 
People  V.  Moore3...30,  33,  35,  470 

People  V.  Mullin 30 

People  V.  Omaha 517 

People  V.  Orange  County  Con- 
struction Co 1,       4 

People  V.  Otis 540 

People  V.  Piatt 632 

People  .  Railroad  Co 302 

People  V.  Russell 551 

People    V.     Sheldon 320,323 

People  V.   Speir •.  .    445 

People  V.  Sugar  Refining  Co.  .    323 

324 

People    V.    Supervisors 667 

People  V.  Trust  Co 304 

People  V.  Warden 173 

People  V.  West 542 

People   V.   White 629 

People    V.    Wilzig 336 

People's  Bank  v.  Jackson. 215,  237 


Seo. 
People's    Gas    Light    and    Coke 

Co.  V.   Chicago 535 

People's  Pure  Ice  Co.  v.  Trum- 
bull      135 

Peoria   Co.   v.   Gordon 629 

Pepper   v.   Philadelphia 666 

Perce  v.  Hallett 530 

Pereaux  v.   Simon 80 

Perin  v.  Parker 431 

Perlman  v.  Satorius 398 

Perkins  v.  Barstovr 634 

Perkins  v.  Butler  County.  .515,  519 

Perkins   v.    Catlin 128 

Parkins  v.  Clay 137 

Perkins    v.    Cummings 164 

Perkins   v.   Hadsell 98 

Perkins    v.    Hart 428 

Perkins   v.    Hasbrouck 460 

Perkins  v.  Littlefield 124 

Perkins  v.  Pendleton.  .335,  337,  341 

Perkins  v.  Railroad  Co 295 

Perkins   v.    Watkins 196 

Perrault  v.   Gauthier 334 

Perrin   v.   Canal    Co 534 

Perrin   v.   Wilson 41,     45 

Perry  v.  Ins.  Co 404 

Perry  v.   Pearson 6,     8 

Person    v.    Chase 27,     66 

Pervear   v.    Commonwealth ....   547 

Peter   v.   Westborough 134 

Peters   v.   Davenport 279,283 

Peters  v.  Davis 380 

Peters  v.  Fleming 39.  50,  468 

Peters  v.  Grim 248,  252 

Peters  v.  Johnson 364 

Peters  v.   Opie 606 

Peters  v.  Railroad  Co 497 

Peters    v.    Ryland 303 

Peterson  v.  Christensen 274 

Peterson    v.    Gurren 249 

Peterson  v.  Laik 58 

Peterson    v.    Neazer 474 

Petrie    v.    Berry 377 

Petrie   v.   Williams 58 

Petrow   V.   Wiseman 51 


836 


TABLE    OF    CASES. 


Sec. 

Peugh    V.     Porter 524 

Pevey  v.  Jones 445 

Pew  V.  Bank 462 

Peyser  v.   Mayer 499 

Peyson  v.   Conniff 125 

Pfeuninger  v.  Kokesch 634 

Phadenhaur  v.   Ins.   Co 19 

Phelps   V.   Holderness 259 

Phelps    V.    Montgomery 216 

236,  239 

Phelps   V.   Nowlin 345 

Phelps  V.   Rowe 131 

Phelps  V.   Stillings 91 

Phelps  V.  Worcester 43,  46,  72 

75,  468 
Philadelphia,   etc  R.   R.   Co.   v. 

Anderson 583 

Philadelphia   v.    Kelly 216 

Philadelphia      Ball      Club      v. 

Lajoie 677 

Philadelphia,  etc.  K.  R.  Co.  v. 

Howard 696 

Philadelphia,  etc.   R.  R.  Co.  v. 

Lehman 188 

Phila.  W.  and  B.  Railroad  Co. 

V.  Rice 293 

Philadelphia,  etc.  R.  R.  Co.  v. 

Tow  Boat  Co 188 

Philadelphia's  Appeal. 521,  523,  526 

Philbrook  v.  Belknap 480 

Philip   V.    Gallant 640 

Phillimore    v.    Barry 89 

Phillip   V.    Howell 622 

Phillips  V.  Adams 91 

Phillips  V.  Banking  Co 292 

Phillips    V.    Belden 427 

Phillips   V.   Bislolli 151 

Phillips   V.    Clagett 381 

Phillips    V.    Edsall 521,524 

Phillips    V.    Green G5,  71 

Phillips  V.   Innis 188 

Phillips  V.  Ins.  Co 19 

Phillips  V.   Lloyd 42,  46 

Phillips    V.    Morrison 641 

Phillips  V.  Ocmulgee  Mills....  156 


Sec. 

Phillips  V.  Ogle 237 

Phillips  V.  Roberts 228 

Phillips  V.  Stevens 573 

Phillips  V.  Swank 92 

Phillips  V.  Thompson 104 

Philpot  V.   Bingham 28 

Philpot  V.    Briant 119 

Philpotts    V.    Evans 604 

Phinney  v.  Baldwin .  .  224,  258,  408 

Phinney  v.   Phinney 562 

Phippen  V.  Stickney.  .  165,   168,  169 

Phoenix  Bank  v.  Risley 428 

Phoenix  Ins.  Co.  v.  Transp.  Co.  410 
Physio-Med.  College  v.  Wilkin- 
son    14 

Piatt    V.    Oliver 167 

Pickard  v.   Car   Co 303 

Pickenny  v.  Railroad   Co.. 204,  701 

Pickering   v.    Cease 249,  255 

Pickering    v.    Gunning 43 

Pickering  v.  Railway  Co 508 

Pickersgill  v.  Lahens 374 

Pier    V.    George 518 

Pierce    v.    Cenultry 485 

Pierce  v.   Chamberlain 15 

Pierce   v.    Estate 102 

Pierce    v.    Fuller 303,  312 

Pierce  v.  Ins.  Co 20 

Pierce    v.    Paine 82,    110,  137 

Pierce   v.    Railroad    Co 536,  537 

Pierce  v.  Woodward 316 

Pieronnet   v.   Lull 254 

Pierrepont  v.  Barnard 648 

Pike  V.  Brown 353 

Pike    V.    King 183,  195 

Pike  V.  Warren 634 

Pilkington    v.    Scott 317 

Pinches   v.    Church.  .  .473,   475,  477 

6^0,  666 

Pinkstone  v.  Taliaferro 389 

Pioneer  Saving,  etc.  Co.  v.  Can- 
non    417 

Piper  v.   Foster 137 

Piper   v.    Hoards 631 

Pipp    v.    Reynokls 356 


836 


TABLE    OF    CASES. 


Sec. 

Pit    V.    Cholmondeley 429 

Pitcher   v.   Lowe 85 

Pitkin   V.   Noyes 146,  694 

Pitt  V.   Gentle 385 

Pittsburg    Carbon    Co.    v.    Mc- 

Millin 320 

Pittsburg,    etc.    K.    K.    Co.    v. 

Caldwell 295 

Pittsburg,    etc.    R.    R.    Co.    v. 

Hallowell 615 

Pittsburg,    etc.    R.    R.    Co.    v. 

Hogen 615 

Pittsburg,  etc.  Railroad  Co.  v. 

Moore 288 

Pittsburg,    etc.    R.    R.    Co.    v. 

Rus9 292 

Pixler   V.    Nichols 474 

Pixley   V.    Boynton 255 

Place  V.   Langworthy 170 

Plaisted  v.  Palmer 192 

Planche    v.    Colburn 482,688 

Plant  V.  Wood 336 

Planters    Bank    v.    Sharp 560 

Plaster    v.    Plaster 470 

Plate  V.  Durst 460 

Piatt  V.  Brand 594 

Piatt   V.    Colvin 367 

Pleasants  v.   Ross 642 

Pledger   v.   Garrison 82 

Plimpton  V.  Goodeil 329 

Plumley    v.    Massachusetts....    550 

Plummer  v.  Buckman 480,  599 

Podmore   v.    Guaning 667 

Polen    V.    Palmer 208,226 

Pollard  V.  Photograph  Co 340 

Pollock  V.  Accident  Asso.  ......      20 

Poison  V.  Stewart 101,  397,  403 

Poncher  v.    Railroad   Co 295 

Pond  V.  Williams 379 

Pool  V.  Allen    432 

Pool  V.  Boston 281 

Poole   V.    Weggiiis 330 

Pooler    V.    Christman 7 

Poor  V.   Woodward 599 


See. 

Pope    V.    Hanke 251,    254,    257 

258,  413 

Pope  V.   Linn 192 

Pope  V.  Manuf.  Co 641 

Pope   V.    Marsh:ill 23i 

Pope  V.  Nickerson 420 

Pope  V.  Terre  Haute,  etc.  Co..   404 

Popp    V.    Swanke 84,  114 

Poidage    V.    Cole 153,  579 

Portarlington    v.     Soulby 258 

Porter  v.   Banking  Co 237 

Porter    v.    Bille 119 

Porter  v.  Day 262,  263,  265 

Porter  v.  Gorman 319 

Porter  v.  Water  Co 667 

Porter    v.    Woods 640 

Port  Clinton,  etc.  R.  R.  Co.  v. 

Railroad   Co 668,  676 

Port   Jervis   v.    Bank 438 

Post  V.   Bank 403 

Postal  Telegraph  Co.  v.  Adams  552 
Postal       Telegraph        Co.       v. 

Charlestown 552 

Postal  Tel.  Co.  v.  Lathrop 297 

Potter   V.   Carpenter 457 

Potter  V.   Jacobs 105 

Potter  V.  Jones 5 

Potter  V.  McCay 368 

Poulton  V.  Lat^imore 612 

Poussard  v.   Spiers 589 

Powder    River   Live    Stock    Co. 

V.  Lamb 133,  145 

Powell  V.  Commonwealth .  .  542,  543 

Powell    V.    Graham 485 

Powell    V.    Howard 651 

Powell  V.   Hunt 237 

Powell   V.   Kees 464 

Powell  V.  Koehler 633 

Powell    V.    Pennsylvania.  .  .542,  550 

Powell    V.    Powell 13 

Powell  V.  Railroad  Co 617 

Powell   V.    Smith 493 

Powell  V.  St.  Croix  County 456 

Powell    V.    Supervisors 449 


837 


TABLE    OF    CASES. 


Soe. 

Powell  V.  Waters 212 

Power  V.  Athens 534 

Power    V.    Rankin 128 

Powers    V.    Skinner 284,  286 

Powers   V.    Stout 319 

Powers  V.  Tilley 492 

Pownal   V.    Ferrand 434,  435 

Pracht  V.  Daniels 443 

Prather   v.    Harlan 193 

Pratt    V.    Adams 24Q 

Pratt  V.  Butcher 99 

Pratt  V.  Huggins 629 

Pratt    V.    Humphrey 118,  124 

Pratt    V.    Miller 146 

Pratt  V.   Philbrook 600 

Pratt  V.  Railroad   Co 288,  537 

Pray   v.    Burbank 178 

Pray    v.    Mitchell 144 

Preachers'  Aid  Soc.  v.  England  35& 

Prebble    v.    Baldwin 124 

Prentice  v.  Steele 405 

Prentiss  v.   Ledyard 619 

Presbyterian    Church    v.    Paint 

Co 655 

Prescott  V.  Locke 146 

Prescott   V.    Norris 67 

Preston   v.    Boston ...  452,   455,  456 
496,  499 

Preston  v.  Smith 254 

Price  V.  Barker 378 

Price    V.    Berrington 22,     25 

Price    V.    Campbell 233 

Price  V.  Easton ' 360 

Price  V.  Estill 452 

Price   V.    Furnam 62,    64,     71 

Price  V.  Hartshorn 580 

Price  V.  Haynes 170 

Price    V.    Hewett 70 

Price   V.   Jennings 66 

Price  V.  Lien 102 

Price  V.   Mayor 668 

Price  V.  McKay 92 

Price  V.   People 321 

Price  V.  Pepper 572 


See. 

Price  V.  Railroad  Co 382,  383 

Price  V.  Sanders 30,  40,  41,     42 

44,  47,  48,  468,  469 

Priestley   v.    Railroad    Co 683 

Prime   v.    Koehler 128 

Primley   v.    Shirk 214 

Primrose  v.   Telegraph  Co. 296,  297 

Prince    v.    Kuhler 663 

Princeton,  etc.  Turnpike  Co.  v. 

Gulick 442 

Printing,    etc.    Registering    Co. 
V.  Sampson  .  .   .  .  1,  274,  3;!4,  329 

Pritchard  v.   Martin 602,  605 

Pritchard   v.   Norton 116,  240 

400,   419,  420 

Pritchet  v.   Badger 620 

Proctor    V.    Sears 54 

Proprietors   v.    Taylor 423 

Proprietors  v.  Wheeley 534 

Prospect  Park,  etc.   R.   R.   Co. 

V.  Railroad  Co 672,  676 

Prouty  V.  Edgar 30,     69 

Prouty  V.   Wiley 59 

Providence   Bank   v.   Billings.  .   534 
Providence     County     Bank     v. 

Benson 508 

Provident  Institution  v.  Massa- 
chusetts   533 

Pruitt    V.    Pruitt 355 

Public  Schools  v.  Heath 526 

Publishing   Co.   v.    Smyth 339 

Puchet    V.    Alexander 176,  200 

Puckett  V.  Bates 121 

Puckett  V.  Reed 513,  514 

Pugh  V.  Barnes 352 

Pugh   V.   Jenkins 244 

Pugh    V.    Stringfield 377 

Pulf er  V.  Little 602 

Pullman    Car    Co.    v.    Pennsyl- 
vania   552 

Purcell  V.  Daly 509 

Puterbaugh  v.  Farrell 239 

Putnam  v.  Field 357 

Putnam    v.    Hill 66 


838 


TABLE    OF    CASES. 


See. 

Putnam  v.  Putnam 178 

Putnam    v,    Ritchie 39,     46 

Putnam  Machine  Co.  v.  Cann.  .    124 

Putney  v.   Farnham 353 

Pyle  V.  Cravens 28 

Pyne  v.  Wood 41,     44 

Quarles  v.   State 186 

Queen    City    Furniture    Co.    v. 

Crawford 463 

Quick    V.    Corliss 636,637 

Quick  V.  Stiiyvesant 588 

Quimby  v.  Railroad  Co 295 

Quincy  v.  Tilton 593 

Quinn  v.  Champagne 92 

Quinn    v.    Latham 334,335 

Raabe  v.   Squire 662,  663 

Radcliff   V.    Poundstone 122 

Raesner  v.  Hermann 299 

Raflferty  v.  Lougee 97 

Ragan  v.  Aiken. . 325 

Raggan  v.  Green 14 

Ragio  V.  State 540 

Railroad  Co.  v.  Bartram 293 

Railroad    Co.   v.   Bishop. .  .288,  295 
Railroad   Co.   v.   Central   Lum. 

Co 643,  645 

Railroad    Co.    v.    Curran..288,  295 

Railroad  Co.  v.  Derny 295 

Railroad  Co.  v.  Fitzgerald 293 

Railroad  Co.  v.  Fix 293 

Railroad  Co.  v.  Henderson....   295 

Railroad  Co.  v.  Henry 644 

Railroad  Co.  v.  Hopkins.  .288,  365 

Railroad  Co.  v.  Howard 610 

Railroad  Co.  v.  Husen 547,  549 

Railroad  Co.  v.  Hutchins 492 

Railroad  Co.  v.  Maine 541 

Railroad  Co.  v.  March. 642,  643,  645 

Railroad  Co.  v.  Martino 293 

Railroad  Co.  v.  McClelland...   537 

Railroad   Co.   v.   McClure 531 

Railroad  Co.  v.  McConnell 173 

Railroad  Co.  v.  Mieehe 295 


Sec. 

Railroad    Co.    v.    Mundy 295 

Railroad  Co.  v.  Navigation. .  . .   293 
Railroad    Co.   v.    Perkins.  .643,  644 

Railroad   Co.   v.   Price 642 

643,  645 
Railroad  Co.  v.  Railroad  Co..   538 

Railroad  Co.  v.  Reed 582 

Railroad   Co.  v.   Reeves 616 

Railroad  Co.  v.  Sayers 288 

Railroad  Co.  v.  Smith 641 

Railroad  Co.  v.   Spangler 29^ 

Railroad  Co.  v.   Stevens.  .  .288,  295 

Railroad  Co.  v.  Stockton 351 

Railroad  Co.  v.  Tygard 351 

Railroad  Co.  v.  Vanatta 293 

Railroad  Co.  v.  Wynn 288 

Raisin  v.  Clark 451 

Rake  v.  Pope S2 

Rallman  v.  Express  Co 288 

Ralston  v.   Wood 389,  390 

Ramey  v.  Capps 192 

Ramsay    v.    Clark 212 

Ramsdell   v.   Edgarton 171 

Ramsey   v.    People 2,  540 

Rand  v.  Mather 204 

Rand  v.   Webber 448 

Randall  v.   Brigham 533 

Randall  v.  Latham 668 

Randall    v.    Rich 441 

Randall   v.    Sweet 48 

Randall  v.  Turner 82 

Randle  v.  State 270 

Random  v.   Tobey 637 

Ranken  v.  Alfaro 526 

Rankin  v.  Collins 392 

Rann  v.  Hughes 119 

Rannells  v.  Gerner 12 

Ranney  v.  Higby 150 

Ransome  v.  Railway  Co 325 

Rappleye  v.  Seeder  Co 519 

Rather  v.  Bank 177 

Rau  V.  Boyle 287 

Raub  V.  Van  Horn 322 

Rauft  V.  Reimers 319 

Raus   V.   Yates 371 


839 


TABLE    OF    CASES. 


See. 

Rawson  v.  Clirk 665 

Eawson  v.  Copland 353 

Rawson  v.  Railro  d  Co 293 

Rawstorne    v.    Gaudell 381 

Rawstone  v.  Parr 374 

Ray  V.  Cattell 193 

Ray  V.  Haines 62 

Ray  V.  Mackin 165 

Ray  V.  Thompson 613 

Ray  V.  Tubbs 34 

Raymond  v.   Bearnard 598 

Raymond    v.    Leavitt 250,321 

Raymond  v.  Lowe 486 

Raymond    v.    Vaughn 1,3 

Raynor  v.  Drew 133 

Rea  V.   Bishop 23 

Rea  V.  Somerset 584 

Read  v.  Bank 560 

Read  v.  Brewer 401 

Read    v.    Legard 11,  468 

Read  v.  Nash 124 

Read   v.   Railroad   Co r/8o 

Read   v.   Spaulding 583 

Reade    v.    Lamb 100,  1  !'.> 

Reader  v.  Kingham 123 

Reading   v.    Wilson 72,    73,  74 

Ready  v.  Huebner 237 

Reagan  v.  Trust  Co 539 

Reando  v.  Misp.'ay 11,  12 

Reardon  v.  Searcy 561 

Reave  v.  Boycott 26 

Rebman  v.  Land  Water  Co...  479 

Reeht   v.    Kelly 51."> 

Red  Bank  ISIut.  Build.  &  Loan 

Asso.  V,  Patterson 219 

Redden  v.  Baker 10 

Redelaheimer   v.   Miller 365 

Redford    v.    Clarke 630 

Redheffer   v.   Leathe 519 

Rtdington  v.  Robeits 149 

Redpath  v.  Telegraph  Co 297 

Reed    v.    Gallagher 640 

Reed  v.  Golden 595 

Reed    v.    Lane 27 

Reed  v.  McConnell 481 


See. 

Reed  v.  Nash 122 

Reed  v.  Tel.  Co 421,  692,  693 

Reeder  v.  Sayre 138 

Rees    V.    Berringtoii 393 

Reeve  v.  Association 219 

Reeves  v.  Butcher 192 

Refining  Co.  v.  McMahon 9 

Reg  V.  Aspinall 162 

Reg  V.  Hudson 162 

Regan  v.  Baldwin 501 

Regan   v.    Steamship   Co 305 

Reger  v.  O'Neal 215 

Keggan  v.  Green 22 

Rehill    V.    McTague 427,429 

Reichenbach   v.   Sage 057,  661 

Reid    V.     Friendly    Society    of 

Operative   Stonemasons   ....  335 

Reid  V.  Kenworthy 83 

Reid  v.   Scituate 473 

Reid  V.  Wilson 368 

Reiff  V.  Bakken 243 

Reinhard  v.   Columbus 129 

Relle  V.  Teleg.  Co 693 

Reneick  v.  Sandford 151 

Renihan  v.   Wright 485 

Rentch   v.   Long 146 

Repetti    v.    Maisak 90,  92 

Republic  Iron,  etc.  Co.  v.  State  2 

Resetter   v.    Waterman 96,  124 

Reuss   V.   Picksley 98 

Reus  Glass  Factory  v.  Reed.  .  457 

Revell  V.  Hussey 672 

Rex  V.  Berenger 162,  163 

Rex  V.  Brotherton 180 

Rexford   v.    Smith 617 

Reybold    v.    Parker 634> 

Reynall  v.  Sprye 330 

Reynolds  v.  Bank 175 

Reynolds  v.   Everett 347 

Reynolds  v.  Kirk 83 

Reynolds  v.  McCurry 63,  64 

Keynolds  v.   Padgett 488,  489 

Reynolds   v.    Sweetser 47,  476 

Hhea  v.  White   330 

Kheel  v.  Hicks 454 


840 


TABLE    OF    CASES. 


Sec. 

Ehoads  v.  Association 220 

Rhodes  v.  Iowa 182 

Rhodes  v.  Neal 286 

Rhodes       Furniture       Co.       v. 

Weedon 135 

Ricards  v.  Ricards 195 

Rice  V.  Boyer..41,  57,  58,  69,     70 

Rice  V.  Gist 246 

Rice  V.  Inskeep 373 

Rice  V.  Manly 344,  346 

Rice  V.   Shute 368,  370 

Richards  v.  Allen 108 

Richards  v.  Bank 241 

Richards  v.  Green 669 

Richards  v.  Heather.  .368,  371,  380 

Richards  v.  Seating  Co 313 

Richards   v.    Smith 508 

Richards  v.  Vanaerpool 498 

Richardson  v.  Brix 198 

Richardson  v.   Buhl 320,  323 

Richardson   v.    Cheneyworth .  . .    683 

Richardson   v.    Cook 560 

Richardson  v.  Denver 456 

Richardson  v.  Dorman 200 

Richardson  v.  Draper 372,  374 

Richardson   v.    Duncan. ..  .497,  498 

Richardson   v.    Green 98 

Richardson  v.  Horn 600 

Richardson   v.    Horton 374 

Richardson  v.  Pate 59 

Richardson   v.    Pierce 134 

Richardson  v.  Robbins 122 

Richardson    v.    Rountree 293 

Richardson  v.   Shaw 572 

Richardson  v.  Strong.  .49,  471,  484 

Richardson    v.    Williams 432 

Richmond   v.    Moore 180 

Richmond  v.  Toothaker 368 

Richmond,    etc.    R.    R.    Co.    v. 

Jones 299 

Richmond,    etc.    R.    R.    Co.    v. 

Tobacco  Co 549 

Richter   v.    Pappenhausen 374 

Ricketts   v.   Jollift' 22,     23 

Rickey  v.  Clark 449 


Sec. 

Ricks  V.  Yates 602 

Ridgeway   v.    Darwin 12 

Ridgeway  v.  Ingram 85 

Ridgway  v.   Ridgway 105 

Ridgeway  v.  Wharton 85 

Ridgway  v.  English 460 

Riggan  v.  Green 9,     25 

Riggs  V.  Tract  Soc 8,       9 

Riley   v.    Burroughs 403 

Riley    v.    Carter 9,     21 

Riley  v.   Ins.   Co 20 

Riley    v.    Jordan 205 

Riley   v.    Mallory ;;8,    58,     63 

Riley  v.  Sharp 278 

Riley  v.   Williams 480 

Rilling   V.    Thompson 229 

Rindge  v.  Aid  Soc 269 

Rindge   v.   Baker 668 

Ringer  v.  Holtzclaw 91 

Ringle  v.  Railroad  Co 300 

Ripley  v.  Case 448 

Ripley  v.  McCIure 604 

Risley  v.   Bank 524,  526 

Risley   v.    Brown 374 

Ritchie  V.  Boynton 197 

Ritchie  v.   People 1,   4,  344 

Ritchie  v.  Smith 274 

Rittenhouse  v.  Telegraph  Co . .   297 

Ritter  v.  Insurance  Co 16,     19 

Ritter    v.    Smith 267 

Rivers    v.    Rivers 646,  667 

Robards    v.    Brown 555,  562 

Robbins   v.   Bacon 521 

Robbins  v.   Cutler 27 

Robbins    v.    Eaton 27,     65 

Robbins  v.   Potter 461 

Robbins  v.   Shelly  Taxing  Dist  552 

Roberge  v.  Winne 103 

Roberson  v.  Box  Co 340 

Roberts  v.  Adams 392 

Roberts  v.   Barnes 184,  185 

Roberts  v.   Carter 507 

Roberts  v.  Cocke 555 

Roberts  v.  Ins.  Co 419 

Roberts  v.  Norton 679 


841 


TABLE    OF    CASES. 


Koberts  v.  Rock  Bottom  Co 134 

Roberts  v.  Wiggin 71 

Robertson   v.   Deatherage.  .388,  436 

Robertson   v.    Frank 497 

Robertson  v.  Lockie 15 

Robertson  v.  Railroad  Co 295 

Robertson  v.  Smith 370 

Robertson  v.   Van   Cleave 564 

Robinson  v.   Barrows 416 

Robinson  v.  Bland 396,  420 

Robinson  v.   Coulter 26 

Robinson  v.  Davison.  .475,  589,  659 

Robinson    v.    Eastman 460 

Robinson    v.    Green 164,  204 

Robinon  v.  Harman 683 

Robison  v.   Hornbaker 92 

Robinson    v.    Hyer 682,698 

Robinson  v.   Mandell 466 

Robinson  v.  Maxcey 389 

Robinson   v.    Queen 397 

Robinson  v.  Raynor 481,  589 

Robinson  v.  Smith 212,  387 

Robinson   v.    Texas    Pine   Land 

Asso 315 

Robinson  v.  Weeks 26,  27,     43 

48,     62 

Robinson  v.  Welly 440 

Robson   V.    Calze 503 

Robson    V.    Drummond. .  .  .457,  519 

Robstelli  v.  Railroad  Co 292 

Rockford,  etc.  R.  R.  Co.  v.  Sage  463 
Rock  Island  v.  Mercer  Coiinty.    129 

Rockwell  V.  Bank 232 

Rockwell  V.  Hubbell 558 

Rodecker  v.   Littauer 212 

Rodemacher  v.  Railroad  Co. .  . .   537 

Rodgers  v.   Maw 464 

Rodgers   v.    Railroad   Co 583 

Rodick  V.  Gandell 526 

Roe   V.    Kiser 206 

Roebling  Sons  Co.  v.  Fence  Co.   594 

Roehl  V.  Haumesser 99 

Roehm    v.    Horst 594 

Rogers  v.  Allen 555 

Rogers  V.  Blackwell 9,22,     24 


See. 

Rogers   v.    Buckingham 228 

Rogers  v.   Gosnell 362 

Rogers  v.  Greenbush 456 

Rogers  v.  Hardware  Co 128 

Rogers  v.  Hillhouse 629 

Rogers  v.   Palmer 503 

Rogers  v.  Sanders 625 

Rogers  v.  Steamboat  Co 295 

Rogers  v.  Union  Stone  Co. 356,  357 
Rogers  v.  Van  Nortwick.  .625,  626 

Rogers  v.  Walsh 571 

Rogers  v.  Weaver 453 

Rolland  v.    Hart 503 

Roller    V.    Ott 312,  317 

Rollins   V.   Marsh 73,     74 

Rollins'  Invest.  Co.  v.  George.   674 
Rome,  etc.  R.  R.  Co.  v.  Sullivan  290 

Romero  v.   Newman 588 

Rondeau  v.   Wyatt 139 

Roodes  V.  Smithurst 629 

Roodhouse  v.  Roodhouse 37 

Root  V.  Railroad  Co 290,  325 

Roper  V.   Johnson 604 

Rose  V.  Munford 217 

Rose  V.  Park  Bank 399 

Rose  V.  Railroad  Co.. 288,  293,  295 

Rose  V.  Savory 427 

Rose  V.  Truax 284 

Rose  V.  Wallenburg 96 

Rosenblatt  v.  Townsley 192 

Ross  V.  Allen 92 

Ross   V.    Milne 361 

Ross  V.  Railroad  Co 536 

Ross  V.  Scott 492 

Ross  V.   Welch 151 

Rossiter  v.  Miller 89 

Rothschild   v.   Mack 506 

Rothwell  V.  Dean 665 

Rottman  v.  Fix 122 

Roundtree    v.    Baker 402,413 

Roundy  v.  Thatcher 62 

Rousillon  V.   Rousillon 309,  311 

314,  408 

Row  V.  Dawson 526 

Rowan   v.   Hyatt 352 


842 


TABLE    OF    CASES. 


See. 

Rowland  v.   Bull 216 

Rowley  v.  Stoddard 377,  379 

Roxbury  v.   Railroad  Co 541 

Roycroft  v.  Tayntor 344 

Rueker  v.   Cammeyer 87 

Rucker  v.   Harrington 81 

Ruckman  v.  Bergholz 175 

Rudolf  V,  Winters 255 

Ruggles  V.  Illinois 539 

Ruggles  V.  People 538 

Ruhe   V.    Buck 419 

Rumsey  v.   Berry 249,   251,  255 

Rundlett  v.   Weber 205 

Runnells  v.  Bosquet 5 '5,  518 

Ruple  V.  Bindley 515,  518 

Rush  V.  Landt T 403 

Rushing  Reduction  Co.  v.  Mil- 
liard      128 

Rusk  V.  Fenton 22 

Russell  V.  Allen 567 

Russell  V.  Bell 464 

Russell  V.  Burton 284 

Russell   V.    Clarke 159 

Russell  V.  Jackson 503 

Russell  V.  Murdock 192 

Russell  V.  Telegr.  Co 693 

Rutherford   v.   Mclvor 450 

Rutland  R.  R.  Co.  v.  Railroad 

Co 531 

Rutledge  v.  Price  Coimty 456 

Ryalls  V,  Moody 664 

Ryan  v.  Clanton 402 

Ryan  v.  Dayton 474 

Ryan  v.    Douglass   County.  ...   519 

Ryan   v.   Growney 67 

Ryan  v.  Lynch 460 

Ryan  v.  Potwin 173 

Ryan   v.   School  Dist 201 

Ryan    v.    Smith 44 

Ryan  v.  United  States 85 

Ryde    v.    Curtis 96 

Ryder  v.  Wombwell 40,     41 

Rydon  v.  Walcott 599 

Rylands  v.  Fletcher 584 

Ryno  V.  Darby 192 


Sec. 

Sabin  v.  National  Union 20 

Safe  Co.  V.  Ward 351 

Safety  Deposit   L.   Ins.    Co.   v. 

Smith 425 

Safford  v.  Wyckoff 505 

Sage   V.    Wilcox 79 

Sager  v.  Railroad  Co 288 

Said  V.  Stromberg 180,  412 

Sale   V.    Lambert 89 

Salentine  v.  Ins.  Co 20 

Salesbury    v.    Herchenroder .  .  .   583 

Salinas    v.    Bennett 27,     60 

Salladin    v.    Mitchell 506 

Salmon    Falls    Manuf.    Co.    v. 

Goddard 85,  86,     89 

Salt  Co.  V.  Guthrie 320,  321 

Salt  Marsh  v.  Bank 212 

Salter   v.   Howard 344 

Sampson  v.  Shaw 255 

Sampson  v.  Townshend 274 

Samson  v.   Freedman 427 

Samuel   v.   Marshall 8 

Samuel  v.  Thomas 485 

Samuels  v.  Oliver 250 

San  Antonia,  etc.  Co.  v.  Wilson       2 

Sanborn   v.    Flagler 89,     90 

Sanborn    v.    Goodhue 425 

Sanborn  v.  Merrill 129 

Sanborn  v.   Sanborn 97 

Sanderlin  v.  Willis 698 

Sanders   v.    Filly 363 

Sanders  v.  Gillespie 123 

Sanders  v.  Johnson 187 

Sanders  v.  Rodway 677 

Sanders  v.  Stuart 297 

Sanderson  v.   Rating  Co 668 

Sandford  v.  Kane 228 

Sandford  v.   Railroad   Co 306 

San  Diego  Gas  Co.  v.  Frame .  .  305 
San    Diego    Water    Works    v. 

Flume 322 

Sandren  v.  Railroad  Co 464 

Sands  v.  Potter 10 

Sandwich   Manuf.    Co.   v.    Her- 

riott 368 


843 


TABLE    OF    CASES. 


Sec. 

Sanger  v.  Rothchild 269 

Santa  Clara,  etc.  Co.  v.  Hayes  320 

Sapp  V.   Cobb 213 

Sapsford  v.  Fletcher 431 

Sargent  v.  Butts 192 

Sarles  v.   Sharlow 133 

Sartwell  v.  Horton 497 

Satterlee  v.  Mattnewson 532 

Saterlee  v.  United  States 665 

Saul   V.    Creditors 401 

Saunders  v.  Saunders 363 

Saurdsfeger   v.    State 386 

Savage  v.  Gregg 524 

Savage  v.  Lee 113 

Savage   v.    Liehlyter 51 

Saville  v.   Welch 446 

Savings  Bank  v.  Burnes 330 

Savings  Bank  v.  Ward 348 

Sawyer  v.  Bank 462 

Sawyer  v.   Davis 538 

Sawyer  v.  Lufkin..ll,  12,  471,  472 

Sawyer   v.   Smith 175,  204 

Sawyer    v.    Ware 139,   146 

Saxe  V.  Womack   214 

Saxton    V.    McNair 703 

Sayles  v.  Wellman 192 

Say  ward  v.  Gardner   91 

Scales  v.  State 181,  248,  249 

252,  255,  256 

Scanlon  v.  Cable 9,  14,     22 

Scarth  v.  Ins.  Co 19,     20 

Sceva  V.  True   11 

Schafer    v.     Bank 128 

Schatfer  v.  Lovsette 27 

Schaps  V.  Lehner   22 

Scheffer  v.  Ins.  Co 17,  19,     20 

Scheible  v.  Klein 474,  666 

Schilling  v.  Black    386 

bchilling  V.  Mullen   508 

Schlee  v.  Guckenkeimer    254 

Schloss  V.  Hewlett   283,  577 

Schmertz  v.  Dwyer   398 

Schmidt  v.  Glade 365 

Schmidt  v.  Ittman 22 

Schmidt  v.  Railroad  Co 091 


See. 

Schmidt  v.  Tliomas   145 

Schmitheimer  v.  Eiseman   ....     67 

Sehmoling  v.  Thomlinson 339 

340,  457 

Schneider  v.  Schift'man 128 

Schneider  v.  Turner 254 

Schnell  v.  Chicago 67 

Schofield  v.  Gaskill 388 

Schofield  v.  Railroad  Co 306 

Scholefield  v.  Templer    503 

School  Dist.  V.  Dauchy 580,  587 

School  Trustees  v.  Bennett. 573,  587 
Schoonover  v.  Vachou   ....479,  627 

Schreiner  v.  Orr 249 

Schroeder  v.  Loeber    109 

Schroeder  v.  Wanzor 106 

Schrweppel  v.  Corning 500 

Schuey  v.  Schaefer    106 

Schuff  V.   Rawson    21 

Schuler  v.  Israel    506 

Schultz  V.  Culbertson   499 

Schultz  V.  Ins.  Co 19 

Schultz  V.  Johnson   519 

Schumacher  v.  Eley 398 

Schuster  v.  Railroad  Co 365 

Schuyler  v.   Curtis    340 

Schwab  V.  Pierro 108 

Schwab  V.  Rigby   185 

Schwartz  v.  Saunders   659 

Schwenk  v.   Wyckoflf    283 

Schwenk  v.  Wycks    517 

Schwinger  v.  Hickok    448 

Scioto  Brick  Co.  v.  Pond 571 

Scofleld  V.  Gaskill   436 

Scotland  County  v.  Ewing  ....   452 

Scotland  County  v.  Hill 399 

Scott  V.  Brown    65,  163 

Scott  V.  Buchanan 27,  32,     55 

Scott  V.  Gilmore 204 

Scott  V.  Godwin  . 377 

Scott  V.  Perlee   417 

Scott  V.   Porter    37 

Scott  V.  Safford   222 

Scott  V.  White   128 

Seoville  v.  Canfield   419 


844 


TABLE    OF    CASES. 


Sec. 

Scranton  v.  Stewart   26 

Scribner  v.  Collar  451 

Scruggs  V.  Driver   571 

Scruggs  V.  Mort.  Co 208 

Scudder  v.  Bank    116,  124,  240 

395,  419,  420 
Scully  V.  Kirkpatrick.475,  589,  659 

Scully  V.  Scully 458,  400 

Seamons  v.  Knapp  Co 404 

Searcy  v.  Hunter   57,  61,     66 

Searles  v.  Galbraith 8,     10 

Searles  v.  Pipkin 11 

Sears  v.  Smith   135 

Sears  v.  Starbird 433 

Seary  v.  Drake 106 

Seattle  v.  Liberman    523 

Seaver  v.  Phelps 9,  14,  22,  471 

Seaver  v.  Young 635 

Second     Nat.    Bank    v.    Grand 

Lodge 354,  356 

Secret  Service  Co.  v.  Manuf.  Co.  668 

673 

Seddon  v.  Rosenbaum 134,  137 

Sedgwick  v.  Stanton 276,  284 

Seeman  v.  Inman 87 

Segeson   v.   Leaky 25 

Seibert  v.  Lewis 555 

Seigman  v.  Hoflacker    363,  364 

Selby  V.  Jackson 25,  472 

Selby  V.  Railroad  Co 617 

Selby  V.  Selby 97 

Seldon  v.  Preston   580 

Sellers  v.  Botsford    237 

Selliot  v.  French    691 

Semmes  v.  Ins.   Co 576 

Semnies  v.  Worthington 114 

Seneca  Nation  v.  Christy 531 

Senescal  v.  Bolton 373 

Sennett  v.  Shehan 480 

Sergeant  v.  Stryker 445 

Seton  V.  Slade 600 

Severance  v.  Kimball   498 

Sewell  V.  Eaton   149 

Sewell  V.  Sewell 67 

Sewing  Machine  Co.  v.  Barnard     22 


Sec. 

Sext  V.  Geise    132 

Seymour  v.  Delancey    667 

Shaaber  v.  Bushong 131 

Shaekell  v.  Rosier   164 

Shafer  v.   Riley    508 

Shaffer  v.  Mining  Co.l,  2,  515,  541 

Shafher  v.  State 31 

Shakespeare  v.  Markham 466 

Shane  v.  Smith    481 

Shankel  v.  Moffat   274 

Shannon  v.  Comstock   687 

Shapley  v.  Abbott 276 

Sharp  V.  Carroll    156 

Sharp  V.  Robertson   66 

Sharp  V.  Robinson 27 

Shaver  v.  McCarthy   5 

Shaver  v.  Railroad  Co 300 

Shaw  V.  Berry   585 

Shaw  V.  Clark    249,  257,  413 

Shaw  V.  Graves   457 

Shaw  V.  Ins.  Co 594 

Shaw  V.  Lumber  Co 145 

Shaw  V.  Railroad  Co 512 

Shaw  V.  Pratt   379 

Shaw  V.  Shaw 480 

Shaw  V.  Spencer    358 

Shaw  V.  Tompson   11 

Shaw  V.  Woodcock 100 

Shed  V.  Pierce   376 

Shed  V.  Prince   379 

Sheehy  v.  Mandeville   370 

Sheehy  v.  Shinn    248,  253 

Sheer  v.   Wright    659 

Sheffield,  etc.  R.  R.  Co.  v,  Gor- 
don      643 

Sheldon  v.  Hactun    240 

Sheldon  v.  Railroad  Co 293 

Sheldon  v.  Williams   393 

Shepard  v.  Gas  Llight  Co. 303,  307 

Shepardson  v.  Cary 513 

Slierbourne  v.  Shaw   88 

Sherburne  v.  Fuller 108 

Sherburne  v.  Hartland 29 

Sherman  v.  Barnard   571 

Sherman  v.  Blackman 212 


846 


TABLE    OH     OASES. 


See. 

Sherman  v.  Connor  699 

Sherman  v.  Kreul   373 

Sherman  v.  Smith 541 

Sherry  v.  Perkins 334,  336 

Sherwood  v.  Archer    234 

Sherwood  v.  Stone   87,   128 

Shields  v.  Land  Co 532 

Shields  v.  Ohio    541 

Shirk  V.  Shultz   58,  60,     64 

Shirley  v.  Shirley   98 

Shipley  v.   Bunn    26,  57,     58 

Shipley  v.  State 188 

Shipman  v.  Bank    428 

Shipton  V.  Casson   478 

Shivers  v.  Newton 542 

Shober,  etc.  Co.  v.  Kertney 309 

Shoe  Co.  V.  Saxey 336 

Shoemaker  v.  Benedict    .  .  .  384,  634 

Shook  V.  Vanmeter   128 

Short  V.  Blount   124 

Short  V.  Stone   607 

Shorter  v.  Smith   535 

Shoulters  v.  Allen    14,     22 

Shoup  V.  Wills   456 

Showalter  v.  McDonell 80 

Shrainka  v.  Schoringhausen .  .  .    322 

Shrock  V.  Cowl    66 

Shropshire  v.  Burns   27 

Shubrick  v.  Adams   624 

Shufelt  V.  Shufelt   237 

Shuler  v.  Millsap 476 

Shumate  v.  Farlow    134,  137 

bhulz  V.  Johnson 475,  589,  590 

Shurman  v.  Thompson   204 

Shurtletf  v.  Millard 43 

Shute  V.  Dorr 480 

Sickles  V.   Flanagan    230 

Sickles  V.  United  States 591 

Siedenbender  v.  Charles   178 

Siefel  V.  Ins.  Co 482 

Siegel  V.  Drumm   229 

Siegel    V.    Eaton 573,065 

Siegrist  v.  Arnat 295 

Siemens  v.  Siemens   93 

Siler  V.  Gray 589,  590 


Sill  V.  Wooswick   407 

Silvernail  v.  Cole 571 

Simmons  Hardware  Co.  v.  Mul- 
len       145 

Simmons  v.  Telegr.  Co 693 

Simon  v.  Brown 348 

Simons  v.  Almy 74 

Simonton  v.  Bacon  7,     22 

Simpson  v.  Bank   560 

Simpson  v.  Bloss   162 

Simpson    v.    Brown 351,  352 

Simpson  v.  Castle   567 

Simpson  v.  Harris 128 

Simpson  v.  Nance   129 

Simpson  V.  NichoUs 192 

Simpson  v.  Robert 129 

Simpson  V.  Vaughn 374 

Sims  V.  Bond 359,  360 

Sims  V.  Clark   382 

Sims  V.  Everhardt 56,  67,     68 

Sims  V.  Hutchins 101,   102,  480 

Sims  V.  McEwan   100 

Sims  V.  McLure   472 

Sims    V.    Landray 87 

Sinclair  v.  Talmadge   640,  653 

Singer  v.  McCormick    619 

Singer  Mach.  Co.  v.  Lamb .  .  65,     66 

Singerly  v.  Thayer    639 

Singleton  v.  Hill    85 

Singstack  v.  Harding 138 

Sinking  Fund  Cases 306,  541 

Sinnott  v.  Colombet   201 

Skillin  V.  Merrill 435 

Skinner  v.  Garnett   2 

Skinner  v.  Maxwell    27,     53 

Skinner  v.  Plaisted   26 

Skinner  v.  Santa  Rosa   278 

Skipper  v.   Stokes 518 

Skudder  v.   Bank    399,  401 

Slacum  V.  Pomery 241 

Slade  V.  Arnold   183 

Slater  v.  Foster   662 

Slatter  v.  Meek 80,  100 

Slaughter  House  Cases 4 

Slayton  v.  Barry 57 


846 


TABLE    OF    CASES. 


See. 

Sleeper  v.  Railroad  Co 293  Smith  v. 

Sleigh  V.   Sleigh    430,  431  Smith  v. 

Slingersby's    Case    377  Smith  v. 

Sloan  V.  Williams   519  Smith  v. 

Slociim  V.  Assurance  Co 410  Smith  v. 

Sloo  V.  Pool    392  Smith  v. 

Small  V.  Atwood    307  Smith  v. 

Small  V.  Jones 165,  169  Smith  v. 

Smalley  v.  Greene    133,   134  Smith  v. 

137,  309,  319  Smith  v. 

Smallwood  v.  Sheppards    Ill  Smith  v. 

Smart  v.  Cason    129 

Smart  v.   Sanders    622  Smith  v. 

Smeed  v.  Foard   683,  684,  688  Smith  v. 

Smith  V.  Alabama 550  Smith  v. 

Smith  V.  Alkire   579  Smith  v. 

Smith  V.  Arnold 197  Smith  v. 

Smith  V.  Baker   464,  487  Smith  v. 

Smith  V.  Bank 128  Smith  v. 

Smith  V.  Bean 195  Smith  v. 

Smith  V.  Benefit  Soc 16  Smith  v. 

Smith  V.  Black 370  Smith  v. 

Smith  V.  Bouck   144  Smith  v. 

Smith  V.  Bradley 79  Smith  v. 

Smith  V.  Brady   477,  478,  639  Smith  v. 

640,  655,  666  Smith  v. 

Smith  V.  Brennan 145  Smith  v. 

Smith  V.  Bromley   172,  500 

Smith  V.  Brown 312  Smith  v. 

Smith  V.  Bruning 275,  500  Smith  v. 

Smith  V.  Case 192  Smith  v. 

Smith  V.  Chapman 373  Smith  v. 

Smith  V.  Church 473  Smith  v. 

Smith  V.  Clark 166  Smith  v. 

Smith  V.  Clay 626  Smith  v. 

Smith  V.  Coal  Co 590  Smith  v. 

Smith   V.    Condry 695,  697  Smith  v. 

Smith  V.  Coon 634 

Smith  V.  Cross   230  Smith  v. 

Smith  V.  Cuff 171  Smith  v. 

Smith  V.  Delaney 129  Smith  v. 

Smith  V.  Evans    71  Smith  v. 

Smith  V.  Express  Co 290  Smith  v. 

Smith  V,  Finch 128  Smith  v. 

Smith  V.  Franklin 371  Smith  v. 


Sec. 

Gray 53 

Greenlee 165,  168 

Gugerty 655 

Hayward 603 

Hollister 235 

Humphrey 274 

Hyde 96 

Ingram 401,  403 

Johnson 460 

Jones 83,  521 

Mason 389,  390,  391 

392,  393 

Marvin 210 

Mawhood 175,  196 

Mayo   65,  66,  124 

McLean 402 

Meeting  House 473 

Miller 368 

Milligan 460 

Mitchell    170 

Morris 660 

Morrison 559 

Neale 82,     98 

Northrup 94,     95 

O'Donnell    608 

Packard 559 

Parsons 216,  240,  241 

396,  420 

Philbrook   75 

Railroad  Co.  183,  616,  684 

Rowley 500 

Sayward   123 

School  Dist 473 

Shell 91 

Sheltering  Arms.  .647,  655 

Silvers 229 

Smith 103,  105,   142 

402,  425,  470,  508 

Sparrow 187 

Stone 377 

Tiden 571 

Trust  Co 642 

Ulman 16!) 

Watson   188 

Wheeler 609 


847 


TABLE    OF    CASES. 


Sec. 

Smith  V.  Whitaker   402 

Smith  V.  White 274 

Smitli  V.  Wilcox  186,  194 

Smith  V.  Will  8 

Smith  V.  Woodin   479 

Smith's  Appeal 98,  312,  322 

Smock  V.   Smock    137 

Smoot's   Case    594 

Smythe  v.  Allen 233 

Smyth  V.  Ames    539 

Smyth  V.   Munroe    276 

Smyth  V.  Ward    640 

Sneed  v.  Bradley  114 

Sneider  v.  Heidelberger   558 

Snelden  v.  Harmes    521 

Snell  V.  Brown   646 

Snell  V.  Cottingham 664,  685 

Snell  V.  Dwight   321 

Snell   V.   Harris    64 

Snell  V.  Ins.  Co 452 

Snell  V.  Ives   365 

Snelson  v.  State   449,  452 

Snider  v.  Yates   402 

Snow  V.  Warner 151 

Snowden  v.  Dulavuy   9 

Snyder  v.  Kirtley 388,  436 

Snyder  v.  Willey 275 

Soames  v.   Spencer    90 

Sobey  v.  Brisbee   135 

Solan  V.  Railroad  Co 292 

Solinger  v.   Earle    172 

Solly  V.  Forbes   376,  378 

Soloman  v.  Dreschier   205 

Somerby  v.  Buntin    144 

Somers  v.  McLaughlin   150 

Somers  v.  Pumphrey   6,     22 

Somes  V.   Beaver    11 

Somes  V.  Brewer    21 

Sondheim  v.   Gilbert    395,  413 

teoper  v.  Gabe 6/8 

Sortnell   v.  Hughes 409 

Sottomayor  v.  De  Barras 400 

Souch  v.  Sirawbridge.  .98,  134,  l;i7 
Soule  v.  Albee    129- 


Sec. 

South  V.  Strawbridge   82 

Southcombe  v.  Bishop 625 

Southern  Build.  &  Loan  Asso. 

V.  Harris    219 

Southern  Express  Co.  v.  Glenn  615 
Southern  Express  Co.  v.  Hun- 

nicutt 289 

Southern  Express  Co.  v.  Palmer  352 
Southern   Pacific  R.   R.   Co.   v. 

United  States   401 

South  Royalton  Bank  v.  Bank.  345 
South  Scituate  v." Hanover. 430,  432 
South    Wayles    R.    R.    Co.    v. 

Wythe 677 

Southwick  V.  Bank   504 

Spain  v.  Hamilton   508,  515 

Spalding  v.  Ewing 284,  285 

Spalding  v.  Oakes   437 

Spalding  v.  Rosa 475,  589,  658 

Sparman  v.  Keim.  .  .26,  43,  58,     66 

Spaulding  v.  Ludlow 387 

Spear  v.  Bank 96,  124 

Spear  v.  Bach 151 

Spears  v.  Hartley 629 

Spencer  v.  Ayrault 208 

Spencer  v.  Cone  146 

Spencer  v.  Parry 442 

Spencer  v.  Trafford 458 

Spengler  v.  Snapp   237 

Sperry  v.   Fanning    75 

Spetz  V.  Railroad  Co 300 

Spicer  v.  Earl    62 

Spickler  v.  Marsh   613 

Spies  V.  Bank 399 

Spiller  V.  Skating  Rink 360 

Spofford  V.   Railroad  Co 325 

Spoor  V.  Newell   486 

Spotswood  V.  Barrow  276 

Sprague  v.  Cochran 103 

Sprague  v.  Haines 110 

Sprague  v.  Warren  256 

Spratt  V.   Spratt   6 

Spring  V.  Haskell    684 

Spring  V.   Reed    228 


848 


TABLE    OF    CASES. 


See 

Springfield  v.  Jacobs    198 

Springfield  Bank  v.  Merrick.  . .    178 

205 

Springs  v.  Railroad  Co 288 

Spring  Valley  Water  Works  v. 

Schottler 538,  541 

Squire  v.   Hydliflf 43,  162 

Squire  v.  Tellier    1 

Staat  V.   Evans    446 

Stack  V.  Cavanaugh  ...  .61,  65,     67 

68,     70 

Stack  V.  Sperry   216 

Stackpole  v.  Symonds 185 

Stacy  V.  Kemp  194 

Stafford  v.  Devereaux 460 

Stafford  v.  Roof    58 

Stamper  v.  Temple  281 

Stanberry   v.   Smythe 526 

Standaril     Cotton     Oil     Co.    v. 

Adoue 313 

Standard  IMill  Co.  v.  Flower.  .  .   249 

Standard  Oil  Co.  v.  Murry 348 

Standard  Tube  v.  Inter  Union.   336 

Stanford  v.  McGill    594 

Stanhilber  v.  Ins.  Co 404 

Stansell  v.  Trust  Co 228 

Stanton    v,    Allen 305 

Stanton  v.  Singleton    668 

Stanton  v.  Wilson 468 

Stark  V.  Olson 403 

Stark  V.  Parker 474 

Stark  V.  Raney 129 

Starns  v.  Dillingham   488 

Star  Publishing  Co.  v.  Associ- 
ated Press 322 

Starr    Cash    Car    Co.    v.    Rein- 

hardt 490 

Startup  V.  Macdonald   641,  645 

St.  Andrew  v.  Manut.  Co 507 

St.  George  v.  Biddeford 13 

St.  John  V.  Ins.  Co 267 

St.  Joseph's  Academy  v.  Augus- 
tine         72 

St.  Joseph,  etc.  R.  R.   Co.  v. 

Palmer 288,  290,  291 


See, 
St.  Joseph,  etc.  R.  R.   Co.  v. 

Ryan 302 

St.     Louis     Agricultural,     etc. 

Asso.  V.  Delano 186 

St.  Louis,  etc.  Railroad  Co.  v. 

Clark    113 

St.    Louis,    etc.    R.    R.   Co.  v. 

Dorman 617 

St.    Louis,    etc.    R.    R.   Co.  v. 

Gill 539 

St.    Louis,    etc.    R.    R.   Co.  v. 

Mathews 302 

St.    Louis,    etc.    R.    R.   Co.  v. 

Nelson   295 

St.    Louis,    etc.    R.    R.   Co.  v. 

Paul 2 

St.  Louis  V.  Gas  Light  Co 303 

St.  Louis  Life  Ins.  Co.  v.Graves  18 
St.  Louis  Nat.  Bank  v.  Gay. . .  507 
St.  Patrick's  Church  v.  Abst. .   458 

State  V.  Addington 542,  513 

State  V.  Ambs 181 

State  V.  Bain   640 

State  V.  Baum   181 

State  V.  Bernheim   173 

State  V.  Bladen  County 584 

State  V.  Board  530 

State  V.  Boneil 270 

State  V.  Bonham   200 

State  V.  Bott   181 

State  V.  Broadbelt 1 

State  V.  Brown,  etc.  Co 1,       2 

State  V.  Bryant 270 

State  V.  Buchanan   4,  544 

State  V.  Bunce 26 

State  V.  Cadigan   ICS 

State  V.  Campbell 542 

State  V.  Chandler   386 

State  V.  Clark 270 

State  V.  Clover 277 

State  V.  Coal  and  Coke  Co.l,  2,  534 

540 

State  V.  Collier 282 

State  V.  Cone   31 

State  V.   Considine    544 


849 


TABLE    OF    CASES. 


See. 

State  V.  Corbet 173 

State  V.  Dalton   270 

State  V.  Distillery  Co 320 

State  V.  Douglass   426 

State  V.  Dyer   334 

State  V.  Talk   264 

State  V.  Fernandez   181 

State  V.  Forgus   530 

State  V.  Garbroski    198 

State  V.  Gas  Co 538 

State  V.  Gelpi    187 

State  V.  Gilliam 566 

State  V.  Glidden 334 

State  V.  Goodwill    2,  4,  540 

State  V.  Granneman   188 

State  V.  Harrington   198 

State  V.  Hastings 283,  351,  517 

State  V.  Hawkins    270 

State  V.  Holden  4 

State  V.  Horgan 542 

State  V.  Howard 44,  530 

State  V.  Illyes 571 

State  V.  Indemnity  Asso 404 

State  V.  Johnson   282 

State  V.  Judge  181 

State  V.  Judges 530 

State    V.    Justus 337 

State  V.   Kennedy 400 

State  V.  Krech   188 

State  V.  Kreutzberg   341 

State  V.  Latt   691 

State  V.  Legund  4 

State  V.  Loomis   2,  4,  540 

State  V.  Manuf.  Co .  .  .537,  541 

State  V.  Marshall 542 

State  V.  Missouri  Tie  and  Lum- 
ber Co 2 

State  V.  Moren   270,  272 

State  V.  Moore 581 

State   V.   Munford 271 

State  V.  Mut.  Accident  Asso .  . .   404 
State    V.     Nebraska    Distilling 

Co 320,  323 

State  V.  Nelson   542 

State  V.  Ohmer 188 


See. 

State  V.  Olney   271 

State  V.  O'Neil 398 

State  V.  O'Kourk 181 

State  V.  Person   541 

State  V.  Peel  Splint  Coal  Co. . .       2 

State  V.  Plaisted 27,     58 

State  V.  Powell   181 

State  V.  Railroad  Co..  181,  300,  303 
352,  362,  365,  366,  541 

State  V.  Eeam   530 

State  V.  Reynolds    544 

State  V.  Richards    551 

State  V.  Sears   566 

State  V.  Setzer 13 

State  V.  Shedroi    198 

State  V.  Shugart   270 

State  V.  Smedes   530 

State  V.  Smith  ..47,  200,  470,  542 
State  V.  Standard  Oil  Co . .  320,  323 

334 

State  V.  Stewart   334 

State  V.  Taylor    229 

State  V.  Thompson   542 

State  V.  Tutty   400 

State  V.  Verwayne    530 

State  V.  Watson 375 

State  V.  Weatherwax 35 

State  V.  Williamson 283,  517 

State  V.  Wilson 2,  173 

State  V.  Worthington 577 

State  V.  Young 193 

State  Bank  v.  Knoop   534 

State  Bank  v.  United  States . .  504 
State,  etc.  Ins.  Co.  v.  Brinkley  404 
State  Trust  Co.  v.  Sheldon. 275,  637 

Stead  V.  Dawber  81,  648 

Stearnes  v.  Page   626 

Stearns  v.  Dillingham   446 

Stebbins  v.  Peck    192 

Stebbins  v.  Smith   118 

Steel  V.  Smelting  Co 276 

Steel   V.   Souder 634 

Steele  v.  Andrews   208 

Steele  v.  Asso Ill 

Steele  v.  Fierson   520 


850 


TABLE    OF    CASES. 


Sec. 

Steele  v.  Railroad  Co 530 

Steele  v.  Williams 452 

Steene  v.  Aylesworth 352,  364 

Steele  v.  Trebilcock   185 

Stees  V.  Leonard   573 

Steffes  V.  Lemke   382 

Stein  V.  Bienville  Co 534 

Stein  V.   Swenson    228,  237 

Steiner  v.  Clisby.486,  488,  491,  494 

Stephens   v.   Bank 232 

Stephens   v.    Board 504 

Stephens  v.  Olson 211,  230 

Stephens  v.  Railroad  Co 274 

Stephenson  v.  Osborne  558 

Stern  v.  Dermis   576 

Stevens  v.  Benning   519 

Stevens  v.  Catlin   371 

Stevens  v.  Cincin.  Enquirer  Co  270 

Stevens  v.  Goodsell  453 

Stevens  v.  Hay 129 

Stevens  v.  Lee 110,  479 

Stevens  v.   Warren    266 

Stevens  v.  Webb    577 

Stevenson  v.  Ewing 198 

Stevenson  v.  Gray 400 

Stevenson  v.  Kyle   517 

Steward  v.  Conner 445 

Stewart  v.  Ahrenfeldt 427 

Stewart  v.  Davis    188,  190 

Stewart  v.  Flint   7 

Stewart  v.  Ins.  Co 513,  514 

Stewart  v.  Jerome    128 

Stewart  v.  Lispenard   7 

Stewart  v.  Loring    475,  585 

Stewart  v.  Mallon 320 

Stewart  v.  McQuade   664 

Stewart  v.   Petree    222 

Stewart  v.  Railroad  Co 325 

Stewart  v.   Schall    249 

Stewart  v.  Stewart    106,  449 

Stewartson  v.  Lathrop   198 

Sticker   v.    Overpeck 666 

Stickney  v.  Moore   222,  224 

Stiger  v.  Burt 238 

Stiles  v.  McClellan   98 


Sec. 
Stillwell,  etc.  Co.  v.  Phelps  . . .   666 

Stix  V.  Matthews    395,  408 

Stocker  v.   Brockelbach    677 

Stockett  V.  Watkins   489 

Stocking  V.   Hunt    560 

Stocks  V.  Dobson   508 

Stoddard  v.   Martin    246 

Stodhard  v.  Lee 473 

Stokes  v.  New  York   540 

Stokes  v.  Stokes    668 

Stondenmeier  v.  Williamson . . .    120 
Stone  V.  Browning   141,  147 

148,  149 

Stone  V.  Dennison 34,  80,  482 

t~;tone  V.  Dickinson   375 

Stone  V.  Graves   188 

Stone  V.  Lidderdale    283,  517 

Stone  V.  Mississippi 273,  532 

546,  547 

Stone  V.  Porter    389 

Stone  V.  Railroad  Co. 203,  538,  539 

Stone  V.  State    87 

Stone  V.  Stone   481 

Stone  V.  Todd 460 

Stone  V.  Trust  Co 539 

Stone  V.  Walker 122 

Stone  V.  Wilbur 7 

Stone  V.  Wisconsin   539 

Storer  v.  Gordon   615 

Storer   v.   Railway   Co 676 

Stormont  v.  Assurance  Co....     18 
Story  v.  Soloman  .    . .  245,  249,  255 

Storz  V.   Finkelstein 205 

Stout  V.  Ennis   279 

Stouthall  V.  Farish 208 

Stover  V.  Duren   624 

Stowell  V.  Drake   371 

Stowell  V.  Robinson   81 

Stowers  v.   Hollis    30,  33,  134 

Straight  v.  Wright 93,  94,     96 

Strathman  v.  Gorla 284 

Straus  V.  Wessel   512 

Strauss  v.  Meertief 611 

Strawberry  Point  Bank  v.  Lee.   399 
Stray  v.  Russell 448 


851 


TABLE    OF    CASES. 


See. 

Streatfield  v.  Halliday 382,  S86 

Street  v.  Blay  496,  612 

Street  v.  Varney  Electrical  Sup- 
ply Co 4 

Streeter   v.    Life    and   Accident 

Soc 20 

Strickland  v.   Burns 445 

Strickland  v.  Hamlin   124 

Strickland  v.   Turner    572 

Stringfield  v.  Heiskell 519 

Strobridge  Litho.  Co.  v.  Crane  677 

Strohn  v.  Railroad  Co £82 

Strong  V.  Bird   360 

Strong  V.  Foote   43 

Str other  v.  Butler   464 

Strubbles  v.   Railroad   Co 492 

Struthers  v.  Drexel 209 

Stuart  V.  Baker   64 

Stuart  V.  Marvel   641 

Stuart  V.  Sears    454 

Stuart  V.  Railway  Co 672 

Stuart  V.  Telegr.  Co 693 

Stubbins    v.    Mitchell 389,390 

Studholme  v. '  Mandell 577 

Studley  v.  Borth 125 

Studwell    V.     Shapter 67,     68 

Stull's    Estate 178 

Sturdivant  v.   Bank 417 

Sturgis   V.    Bank 130 

Sturges    V.    Crowninshield  557 

559,  561 

Stuht  V.   Sweesy 105 

Sturt  V.   Mellich 633 

Sturtevant   v.    Armsby   Co....   406 

Stutz  V.  Dickey 136 

Succession  of  Cassidy 403 

Succession   of   Gaines 26 

Succession  of  Jackson 473,  020 

Succession  of  Larendon 403 

Succession  of  Latchford.  .  .208,  219 

Succession    of    Voorhies 034 

Sugarman    v.    State 581 

Suggett    V.    Cason 82 

Sugworth   V.   Leffel 612 

Suit    V.    Woodhall 409,503 


Sec. 

Sullivan   v.   Association 219 

Sullivan  v.  Flynn 22,     23 

Sullivan  v.  McMillan. 686,  687,  691 
Sullivan  v.  Sullivan.  .  115,  395,  398 

Summerfield  v.   Teleg.   Co 693 

Summers    v.    Clark 435 

Summei-s   v.   Huston 508 

Sumner  v.  Jones 192 

Sumner   v.   Powell 372,  374 

Sumner  v.  Williams 485 

Supreme  Commandery  v.  Ains- 

worth 16,     19 

Superior  Con.  Land  Co.  v.  Bick- 

ford 385 

Supervisors    v.    Briggs 452 

Supervisors  v.  Galbraith 399 

Suppiger  v.  Ins.  Co 20 

Susong  V.   Vaiden 374 

Sussex   Peerage   Case 178 

Sutherland  v.   Briggs 98 

Sutherland  v.   Carter 122 

Sutherland    v.    Reeve 508 

Sutton   V.   Head 312 

Sutton  V.   Warner 400 

Suydam  v.  Clark 571 

Swain  v.   Burnett 84 

Swain   v.    Lindsey 628 

Swain  v.   Schieitelin 685 

Swan    V.    Nesmith 87,   128 

Swan  v.  West 568 

Swank  v.  Hufnagle 403 

Swann   v.    Buck 530 

Swann  v.   Scott 331 

Swann  v.  Swann.  180,  274,  322,  412 

Swanzey    v.    Moore 80,  474 

Swart    V.     Gale 448 

Swartout   v.   Railroad   Co 302 

Swayne  v.   Riddle 209,  214,  215 

Swearington  v.   Dairy  Co 630 

Sweatland  v.  Telegraph  Co ... .   297 
Swedish-Am.      Nat.      Bank      v. 

Bank 407 

Sweeney  v.  Hunter 540 

Sweeney  v.  Ins.  Co 266 

Sweeney   v.   McLeod 284 


852 


TABLE    OF    CASES. 


Sec. 

Sweeney  v.  United  States 642 

643,  645 

Sweet  V.  Lumber  Co 134 

Sweigart   v.    Berk 377 

Swift  V.   Beers 635 

Swift   V.    Bennett 33,   48,     49 

Swift  V.  Poughkeepsie 456 

Swift  Co.  V.  United  States 452 

Swigart  v.  People 264 

Swing  V.   Munson 404 

Switzer  v.  Skiles 169 

Sykes  v.  Bank 524,  525,  527 

Sykes  v.   Beaden 330 

Sykes    v.    Dixon 98,  344 

Sylvester  v.   Swain 212 

Syracuse  Water  Co.  v.  Syracuse  534 

Taff  Vale  Railroad  Co.  v.  The 
Amalgamated       Society       of 

Railway  Servants 334,  335 

Taft  V.  Adams 426 

Taft    V.    Sergeant 66 

Talbott  V.  Trans.  Co 421 

Tank  v.  Roliweder 460 

Tapham  v.  Portland 503 

Tarbell  v.  Railroad  Co 288 

Tarlton  v.  McGawley 342 

Tate  V.  Development  Co 679 

Tatum  V.  Kelly 205 

Tawney  v.  Levy 8 

Taylor  v.  Allen 92 

Taylor  v.  Beck 655 

Taylor  v.  Blanchard 318 

Taylor  v.  Boardman 407 

Taylor  v.  Bowers 275 

Taylor  v.  Caldwell. .  .572,-  589,  657 

Taylor   v.    Chester 161,  409 

Taylor  v.  Gas  and  Coke  Co.  .  .  .  175 

Taylor   v.   Hare 448 

Taylor  v.  Higgins 441 

Taylor  v.   Hill 29 

Taylor  v.  Jaques 499 

Taylor  v.  Lynch 515,  522 

Taylor  v.  Mareum 655 

Taylor  v.  Mitchell 667 


Sec. 

Taylor  v.  Mygatt 118 

Taylor  v.  Palmer 519 

Taylor    v.    Pratt 93 

Taylor  v.  Railroad  Co 288 

Taylor  v.  Read 109 

Taylor  v.   Salmon 367 

Taylor  v.  Savage 388 

Taylor  v.  Sharp 397,  420 

Taylor    v.    Stockwell 558,560 

Taylor   v.    Taylor 357,  373 

Taylor    v.    Williams 477 

Taylor  v.  Wood 466 

Taylor  v.  Young 185 

Teegarder  v.  Lewis 445 

Teeters   v.   Lamborn 125 

Telegraph  Co.  v.  Adams 693 

Telegraph  Co.  v.  Berringer ....   693 

Telegraph  Co.  v.  Carter 693 

Telegraph  Co.  v.  Cline 693 

Telegraph  Co.  v.  Evans 693 

Telegraph  Co.  v.  Griswold 297 

Telegraph    Co.   v.    Henderson . .   693 
Telegraph  Co.  v.  Kirkpatrick. .   693 

Telegraph  Co.  v.  Levy 693 

xelegraph  Co.  v.  Piner 693 

Telegraph  Co.  v.  Rogers 693 

Telegraph  Co.  v.  Rosentreter . .   693 

Telegraph  Co.  v.  Saunders 693 

Telegraph  Co.  v.  Texas 296 

'lelegraph  Co.  v.  Wenger 692 

Telegraph  Co.  v.  Wisdom 693 

Telegraph  Co.  v.  Wood 693 

Telford   v.   Albro 612 

Telford   v.   Garrels.  .  .208,   228,  229 

Tegler   v.   Shipman 398 

Temperton   v.   Russell 334,  342 

Templeman  v.  Biddle 136 

Templeton  v.  Bascom 121 

Templeton  v.   Russell 341 

Tenant   v.   Tenant 399 

Ten  Eyck  v.  Manning 667,  668 

Tennessee   v.    Sneed 556,  5U0 

Tennessee,    etc.    R.    R.    Co.    v. 

Danforth 699 

Tenney  v.  Evans 72 


853 


TABLE    OF    CASES. 


See. 

Terrell    v.    Wentwortli 55 

Territt    v.    Bartlett 177,  205 

408,  409 

Terry  v.  Anderson 528 

Terry  v.  Eagle  Lock  Co 330 

Terry   v.    Munger 487,  489 

Texas,   et,c   R.   R.   Co.   v.   Rail- 
road Co 330 

Texas  Standard  Oil  v.  Adoue.  .   321 

Thacher  v.  Pray 504 

Thacker  v.   Hardy 245,  257 

Thallheimer  v.   JBrinckerhoff .  .  .    518 

Thames  v.  Jones 367 

Thatcher  v.  Morris 408 

Thayer  v.  Allison 621. 

Thayer  v.   Bur  chard 615 

Thayer  v.  Daniels 508 

Thayer    v.    Kelley 515 

Thayer  v.  Luce 85 

Thayer  v.  Star  Mining  Co ...  .   225 

'llie  Amiable  Nancy 695 

The  Anna  Maria 695 

Thebald  v.  Burleign 660 

The   Bradford   City 420 

The  Elvira  Harbeck 424 

The  Guildhall 410 

The  Hadji 410 

The  Harriman 568,  569,  573 

The  Juliana 3 

The  Majestic 293,  295 

The  Schooner  Lively 695 

'ihe  Tornado 572 

Thibodeau  v.  Hildreth 677 

Thiebaud  v.  Furniture  Co.. 97,  676 
Third  Nat.  Bank  v.  Harrison . .   257 

Third  Nat.  Bank  v.  Steele 408 

Tholen  v.  Duffy 208 

Thoman  v.   Dodge 128 

Thomas  v.  Armstrong 134 

Thomas  v.  Bartow 600 

Thomas  v.   Caulkett 163 

Thomas  v.  Cohen 515 

Thomas    v.    Cook 1?3,   129 

Thomas    v.     Flevry 643,  646 

Thomas  v.  Hatch 110,  619 


Sec. 

Thomas   v.    Hawkes 205,  427 

Thomas   v.    Hunter 186 

Thomas  v.  Jones 229 

Thomas    v.    Joslin 99 

Thomas  v.  Knowles 659 

Thomas   v.   Lee   County 509 

Thomas  v.  Miles 312 

Thomas  v.  Murray 210 

Thomas  v.  People 271 

Thomas  v.  Poor 661 

Thomas  v.  Pullis 5G 

Thomas   v.   Railroad   Co... 301,  303 
304,  305,  330,  410,  683 

Thomas  v.  Sypert 630 

Thomas  v.  Trustees 98 

Thomas  Fruit  Co.  v.  Start 650 

Thomasson  v.   Townsend 229 

Tompkins  v.  Dudley 665 

Thompson  v.  Alger 154 

Thompson  v.   Blanchard.  .  .  .79,     93 

Thompson   v.   Bowman 384 

Thompson  v.  Davies 167 

Thompson   v.   Ellenz 406 

Thompson  v.  Gould 571 

Thompson  v.  Hamilton 66 

Thompson  v.  Howard 487 

Thompson  v.  Ketcham 401 

Thompson  v.  Lay 54 

Thompson  v.  Leach 9,  23,  471 

Thompson  v.  Lee  County 509 

Thompson  v.  Lock 378 

Thompson  v.  Marshall 62 

Thompson    v.    Parker 355 

Thompson  v.  Peek 498 

Thompson   v.   Read 632 

Thompson    v.    Richards 384 

Thompson  v.  Simpson 526 

Thompson   v.    Smith 631 

Thompson  v.   Strickland ....  26,     55 

Thompson  v.  Taylor 401 

Thompson  v.  Telegr.  Co 693 

Thompson  v.  Thompson 445 

Tiiompson   v.   Trustees 584 

Thompson  v.  Van  Vechten ....   237 
Thompson  v.  Wood 603 


854 


TABLE    OF    CASES. 


See. 

Thomson  v.  Poor 648 

Thormachlen   v.    Kaeppel . . .  59,     70 

Thorn  v.  San  Francisco 561 

Thornborow    v.    Whiteacre.  .  .  .   568 

Thornburg  v.  Hasten 93 

Thornett   v.   Haines 165,  496 

Thornhill  v.  Evans 222 

Thornton  v.  Dean 420 

Thornton  v.  Kelly 88,     89 

Thornton   v.    Rosenfield 406 

Thornton  v.  Sherratt 317 

Thornton  v.   Wynn 140 

Tnorp   V.    Bateman 460 

Thorpe  v.  Railroad  Co 534,  536 

Thousand    Island    Park    Asso. 

V.    Tucker 320 

Thrift  V.  Payne 474 

Thurston  v.  Blanchard 57 

Thurston  v.  Mills 446 

Thurston  v.   Percival 443 

Tibbetts  v.  George 526 

Tibbetts    v.    Gerrish 52 

Tice    V.    Freeman 85 

Tiedman  v.  Knox 512 

Tierman  v.  Jackson 521 

Tietz   V.    Tietz 442 

Tighe  V.  Morrison 123,  124 

Tilden  v.  Blair 240,  408 

Tilden  v.  Johnson 492 

Tilford   V.    Roberts 156 

Tilley  v.   Damon 498 

Tillinghast   v.   Lumber    Co....   419 

Tillock  V.  Webb 191 

Tillotson  V.  Pritchard 403 

Tillotsson  V.   Nye 222 

Tilton  V.  Tilton 102 

Tiluen  v.   Blair 395 

Timberlake  v.  Thayer 474 

Timothy   v.    Wright 287 

Timson  v.  Ramsbottom 508 

Tingle   v.    Fisher 508 

Tinkler  v.  Swaynie 100 

Tinsley  v.  Harkins 229 

Tisdale  v.  Harris 144 

Tison  V.  Howard 512 


See. 

Titman  v.  Titman 470 

Tobey  v.  Wood 51,     60 

Todd  V.   Clapp 60 

Todd  V.  Railroad  Co 295 

Todd   V.   Taft 674 

Tode  V.  Gross 304,  318 

Toledo,  etc,  R.  R.  Co.  v.  Chew.  464 
Toledo,  etc.  Co.  v.  Jacksonville  271 
Toledo,  etc.  Co.  v.  Penn  Co. 341,  677 
Toledo,  etc.  R.  R.  Co.  v.  Tapp.   424 

Tolson   V.    Garner 21 

Tom  V.  Goodrich 370 

lomblin    v.    Callen 249 

Tombs  V.  Alexander 620 

Tomlinson  v.   Gill 360 

Tomlinson   v.    Jessup 541 

Tooke  V.  Newman 239 

Tool  Co.  V.  Norris 279,  280,  282 

284,  285 
Topeka    Water    Supply    Co.    v. 

Root 10 

Torpy   V.    Johnson 394,  437 

Touche  V.  Warehousing  Co ... .  360 
Touissaint  v.   Martinant 434 

435,  442 

Tourret  v.  Cripps 97 

Touteng  v.  Hubbard 569 

Towers    v.    Barnett 140,  448 

Towers  v.  Moore 374 

Towers   v.    Osborne 139 

Towle  V.  Dresser 27,  58,     66 

Towle  V.  Larrabee 183 

Towle  V.  Leavitt 165 

Towne    v.    Wiley 69 

Townsend   v.   Hargraves ....  84,   100 

138,  150 

Townsend  v.  Hurst 595 

1  ownsend    v.    Kennedy 83,     85 

Townsend   v.   Mead 634 

Townsend  v.  Railroad  Co 293 

Townsend  v.  Riley 241 

Townsend  v.  Rockham 354 

Townsend  v.  Vanderwerker.  .  . .    104 

105,  667 
'1  racy  v.  Roberts 75 


855 


TABLE    OF    CASES. 


Sec. 

Tracy   v.   Talmage 176,  409 

414,  447,  500 

Tracy  v.  State 551 

Tracy  v.  Waters 518 

Trader    v.    Jarvis 30,  625 

Traders  Bank  v.  AIsop 257 

Traders'   Nat.    Hank   v.   Wood- 
lawn   Manuf.    Co 230 

Tradesman's  Bank  v.  Merritt.  .   502 

Trafton  v.  United  States 370 

Trainer  v.  Trumbull 45,     49 

Trammell  v.  Craddock 103 

Transportation     Co.     v.     Corn- 
forth  288 

Transportation  Co.  v.  Downie. .   582 
Transportation  Co.  v.  Thielbar  293 

Trapnall  v.  BanK 27 

Travellers'  Ins.  Co.  v.  McKon- 

key 19 

Traver  v.  Halsted 594 

Treadway  v.   Riley 411 

Treadway  v.  Veasey 53 

Treadwell  v.  Herndon 120 

Treasurer  v.  Mining  Co 674 

Treat  v.   Hiles 133 

Treat    v.    Stanton 364 

Trebilcock    v.    Wilson 278,529 

Treford  v.  Holmes 119 

Trenton  Ins.  Co.  v.  Johnson.  . .   246 

266 
Trenton    Potteries    Co.    v.    Oli- 

phant 309,  312,  314 

Trevor  v.  Wood 85 

Trewinian   v.   Howell 485 

Trible  v.  Nichois 234 

Trieder  v.  Bank 193 

Trigg   V.   Read 449 

Trimble  v.  Thorson 234 

Trimbo  v.  Trimbo 7 

Trimley  v.   Vignier 399 

Tiimmer   v.    Thompson.  ..  .373,  576 

Tripp   v.   Armitage 575 

Tripp  v.  Bishop 98 

Tripp  v.  Brownell 521 


See. 

Trist  v.  Child... 274,  280,  284,  285 

286,  305,  526 

Trovinger  v.  McBurney 274 

Troy  V.   Bland 450 

Troy    Conference    Academy    v. 

Nelson 385 

Trudeau  v.   Poutre 130 

True  V.  Ranney 400 

True  V.  Telegraph  Co 297 

Trueman  v.  Loder 90 

Trueman  v.  Hurst 427 

Truman    v.    Fenton 624 

Trumbull  v.  Nicholson 622 

Trundler   v.   Riley 281 

Trustees  v.  Wheeler 508 

Tucker  v.  Moreland 21,  28,     64 

Tucker  v.  Mowrey 195 

Tucker  v.  West 192 

Tuckerman  v.  Newhall. .  .  .375,  381 

Tuder    v.    Perkins 508 

Tufts  v.  Plymouth,  etc.  Co 83 

Tugman   v.    Chicago 198 

Tunison   v.    Bradford 105 

Tunison  v.  Chamblin. . .  .27,  57,     65 

Tupper  V.   Cadwell 39,   42,     46 

Turk  V.   Ridge 352 

Turner  v.   Esselman 387 

Turner  v.  Frisby 30,  33,  40,  468 

Turner   v.    Gaither 41,   43,     52 

Turner  v.  Hubbell 122 

Turner  v.  Mason 619 

Turner  v.  Rusk 21,     25 

Turner  v.   Telegraph  Co 297 

Tutt  V.  Ide 452 

Tuttle  V.  Armstead 43], 

Tuttle  V.   Block 528 

Tuttle    V.    Burgett 595,597 

Tuttle  V.  Campbell 446,  488 

Tuttle  V.  Cooper 369,  375,  387 

Tuttle  V.  Strout 538 

Tweddle  v.  Atkinson.  .339,  360,  361 

Tweeddale   v.   Tweeddale 339 

Twin  Lick  Oil  Co.  v.  Marbury  625 
Tyler  v.   Carlisle 447 


856 


TABLE    OF    CASES. 


Sec. 

Tyler   v.   Gallop 29,     58 

Tyler  v.  Telegraph  Co 297 

Tyler  v.   Wadingson 185 

Tyson  v.  Rickard 209,  233 

Uberoth  v.  Bank 15 

Udall  V.  Metcalf 272 

Udell    V.    Atherton 503 

Underbill  v.  Ins.  Co 629 

Underwood  v.  Mort.  Co 240 

Underwood  v.   Scott 200 

Underwood  v.  Wolf 612 

Ungericht  v.   State 188 

Uhler  V.  Applegate 185 

Ullniann    v.    Barnard 151 

Ulrich  V.   Reinaehl 268 

Ungley  v.   Ungley 102 

Union  Bank  v.  Coster 94 

Union  Central  Life  Ins.  Co.  v. 

Woods 405 

Union  El.  E.  R.  Co.  v.  Nixon. .  284 
Union,  etc.  R.  R.  Co.  v.  Dodge 

County 456 

Union  Nat.  Bank  v.  Bank 237 

Union  Nat.   Bank  v.   Chapman  396 

401 
Union     Pac.     R.     R.     Co.     v. 

Bank 515,  518 

Union     Pac.      R.      R.      Co.     v. 

De  Busk 537 

Union     Pac.      R.     R.     Co.     v. 

Railroad  Co 672,  676,  680 

Union     Pac.     K.      R.      Co.     v. 

Rainey 288 

Union     Pac.     R.     R.     Co.     v. 

Ruef : 336 

Union    Pacific    R.     R.     Co.    v. 

United  States 325 

Union  State  Bank  v.  Railroad 

Co 290 

Union  Strawboard  Co.  v.  Bon- 
field  314 

United  States  v.  Behan 473 

688,  696 


Sec. 

United  States  v.  Bradley 701 

United  States  v.   Bainbridge. .     30 

United  States  v.  Coal  Co 628 

United  States  v.  Coal  Dealers' 

Asso 310,  326 

United  States  v.  Craig 422 

United  States  v.  Crosby 403 

United  States  v.  Dashiell 584 

United   States  v.  Dewitt..547,  548 

United  States  v.  Edgar 422 

United  States  v.  Fox 403 

United  States  v.  freight  Asso.  274 
320,  323,  324,  326,  557 

United  States  V.  Gibbon 36 

United  States  v.  Kane 336 

United  States  v.  Keeler 584 

United  States  v.   Joint  Traffic 

Asso 324,  326 

United  States  v.  Knight  Co...   323 

326 

United  States  v.  McDaniel 620 

United  States  v.  Northern  Se- 
curities Co 324,  326 

United  States  v.  Olney 271 

United  States  v.  Piek 656 

United  States  v.  Pipe  and  Steel 

Co 310,  326 

United  States  v.  Prescott 584 

United    States   v.    Price... 372,  374 

United  States  v.  Speed 688 

United    States    Express    Co    v. 

Backman 306 

United    States    jiiixpress    Co.    v. 

Rush 290 

United  States,  etc.  Investment 

Co.    V.    Harris 70 

United    States    Invest.    Co.    v. 

Windmill  Co 403 

United    States    Mortg.    Co.    v. 

bperry 224,  240 

United     States     Sav.     &     Loan 

Asso.   v.   Scott 219,   396,  399 

United  States  Tel.  Co.  v.  Gil- 

dersleve 297 


85Y 


TABLE    OF    CASES. 


Sec. 

Unity  V.  Belgrade 13 

Universal      Fashion      C!o.      v. 

Spencer 276 

Urmston   v.   Whitelley 309 

Updike  V.  Titus 460 

Upham  V.   Clute 124,  130 

Upham   V.    Dodd 148 

Upshaw  V.  Gibson 65 

Urquhart  v.   Brayton 352 

Usher  v.  Hiatt 580 

Utica,  etc.  R.  E.  Co.  v.  Brinck- 

erhoff 98 

Vahlberg  v.   Keaton 208 

Vail  V.  Railroad  Co 580 

Vail  V.  Van  Doren 217,  227 

Valentine  v.  Canali 63 

Valentine  v.  Lunt 9 

Vallett   V.   Parker 257 

Valley  Railroad  Co.  v.  Iron  Co.  449 

Valpey   v.    Rea 21,     25 

Valton  V.  Ins.  Co 267 

Van  Alst  v.  Hunter 7 

Van  Baumbach  v.  Bade 566 

Van  Buren  v.  Diggs 640 

Vanbuskirk  v.  Ins.  Co 508 

Vance  v.  Hair 634 

Vance  v.  Vance 528,  560 

Vandenburgh    v.    Spooner 88 

Vanderback  v.   Rochester .  .  449,  452 

Van  Doren  v.   Everett 136 

Van  Doren  v.  Robinson 669 

Van  Doren  v.  Tjader 128 

Van  Dusen  v.  Sweet 9 

Van  Dyne  v.  Vreeland 277 

Van  Hoffman  v.  Quincy 555 

Vanhorn  v.  Des  Moines 350 

Van  Horn  v.  Hann 11 

Van  Horn  v.  Van  Horn 341 

Van  Hoven  v.  Irish 192 

Van  Kensen  v.  Parmelee.  .384,  634 

Van  Marter  v.  McMillan 229 

Vanmeter  v.  Spurrier 202 

Vannoy  v.  Patton 205 

Van  Patton  v.  Reals 22 


Sec. 

Van  Rensselaer  v.  Hayes 560 

Van  Rensselaer  v.  Jewett 691 

Van  Santen  v.  Oil  Co 440 

Van  Schaick  v.  Railroad  Co.  .  .  362 
Van  Schoonhoven  v.  Curley.  . .   555 

Van  Tratt  v.  Wiese 703 

Van  Valkenburg  v.  Torrey.  .  .  .  262 
Van  Valkenburgh  v.  Watson. .  .     47 

470 
Van  Voorhis  v.  Brintnal. .  178,  400 
Van  Wagener  v.  Gas  Light  Co.   506 

\  an  Wych  v.  Allen 685 

Van  Wyck  v.  Watters 228 

Varney  v.   Bradford 479 

Vassault  v.  Edwards 98 

Vasse  V.  Smith 68,  69,     70 

Vaughn  v.  Dorr 27 

Vaughn  v.  Railroad  Co 288 

Vaughn   v.    Smith 86 

Vaught  V.   Rider 234 

Vawter  v.  Griffin 144 

Veal  v.  Fortson 66 

Veazie  v.  Williams 165 

Vegelahn  v.  Guntner 334,  336 

Vehne  v.   Pinkham 62 

Vernon   v.   Vawdey 429 

Vesey  v.  Ackington 239 

Vent  V.  Osgood 27,  62,  482 

Vickers  v.  Railroad  Co 300 

Vickery    v.    Dickson 234 

Vickery  v.   Welch 318 

Vicksburg,    etc.    R.    R.    Co.    v. 

Ragsdale 683 

Victor  v.  Stroock 145,  150 

Victor    Talking    Mach.    Co.    v. 

The  Fair 339 

Vidal  v.  Girard 274 

Vidal  V.  Thompson 115 

Vincent    v.    Germond 151 

Vincent  v.  Railroad  Co 306 

Violett   V.   Patton 93 

Violett   V.    Powell 89 

Virginia    Development    Co.    v. 

Iron  Co 541 

Vliet  V.   Camp 241 


858 


TABLE    OF    CASES. 


Sec. 

Vocke  V.   Peters 134,  274 

Voglesang    v.    Null 27 

Voight  V.  Raby 626 

Voight  V.   Wright 549 

Von  HoflFman  v.  Quincy 528 

Voorhees  v.   Combs 442 

Voorhies    v.    Society 404 

Voorhis  v.  Child 373 

Voorhis    v.    Staed 213 

Vores  V.  Harshbayer 14 

Vose   V.    Grant 394,  437 

Vought  V.  Williams 645 

Vrooman    v.    McKaig 445 

Vrooman  v.   Turner.. 348,   351,  354 

Wabash  R.  R.  Co.  v.  Hannahan  336 
Wabash,  etc.  R.  R.  Co.  v.  Illi- 
nois     538 

Wabaunsee  County  v.  Walker . .   456 

Wade    V.    Haycock 640,651 

Wadleigh  v.  Sutton 666 

Wadsworth    v.    Sherman 12 

Wadsworth  v.  Telegr.  Co 693 

Wailing    v.    Toll 45 

Wain  V.  Walters 93 

Wainright  v.  Water  Works  Co.  349 

Waite   V.    Leggett 450 

Wait    V.    Maxwell 9,     12 

Waite   V.    Paud 250 

Wait   V.    Wait 131 

Wake  V.  Harrop 160 

Wakefield    v.    Martin 508 

Wakeman    v.    Grover 170 

Wakeman   v.    Manuf.   Co.. 690,  697 

Walberton  v.   Davis 129 

Walcott  V.   Heath ; 255 

Wald  V.  Railroad  Co 424,  580 

582,  583 

Waldron  v.  Evans 427 

Wales    V.    Stetson 534,  541 

Walker    v.    Barney 107 

Walker   v.    Brown 442 

Walker    v.    Coleman 488 

Walker  v.  Conant 445,  450 

Walker  v.  Cronin 341,  342 


Sec. 

Walker    v.    Davis 57,  69 

Walker    v.    Denison 622 

Walker  v.  Duncan 464 

Walker   v.    Emerson 624 

Walker    v.    Pitts 578,  660 

Walker  v.   Gregory 274 

Walker  v.  Hill 122,  132 

Walker    v.    Irwin 125 

Walker  v.  Johnson 249 

Walker  v.  Larkin 498 

Walker  v.  Mattraw 319 

Walker  v.   Maxwell 371,  380 

Walker  v.  McCulloch 377,  379 

Walker  v.  Nussey 153; 

Walker  v.  Railroad  Co 134 

Walker  v.   Richards 126 

Walker   v.   Rostron 360 

Walker    v.    Shackelford 479 

Walker  v.   Supple 144 

Walker  v.  Tucker 568,  572,  659 

Walker   v.    Tyrrel 620 

Walker  v.  Whitehead 555 

Wall  v.  Equitable  Soe 404 

Wallace  v.  Chair  Co 515 

Wallace   v.    Eldridge 278,529 

Wallace  v.   Kelsall 382 

Wallace  v.  Latham 56 

Wallace  v.  Lawyer 517 

Wallace   v.   Lewis 55 

Wallace   v.    Long 108,  667 

Wallace  v.  Morss 69 

Wallace  v.  Railroad  Co 537 

Wallace  v.  Rapplej'e 274 

Wallace  v.  Sanders 582 

Wallace  v.  Schaub 458,  460 

Wallace   v.   Wortham 125 

Walling    V.    Michigan.  ..'.  .547,  549 

Wallis  V.  Bardwell 42,  46,  73 

Wallis  V.  Carpenter 382 

Wallis  V.  Randall 384 

Wallis  V.   Warren 606 

Walmsley    v.    Cooper 377 

Walpole  V.  Oxford 466 

Walrath    v.    Champion    Mining 

Company 338 


859 


TABLE    OF    CASES. 


Sec. 

Walrath  v.  Ingles 155 

Walsh   V.   Mayor 638 

Walsh  V.  Powers 66 

Walsh   V.   Young 71 

Walter   v.   Foutz 216 

Walters   v.    Whitlock 406 

Walton  V.  Gaines 32,     66 

Walton  V.  Hollis 580 

Walton  V.  Waterhouse 573 

Walworth    v.    Harris 402 

Walworth  v.  Holt 367 

Wampler  v.  Shissler 386 

Wann   v.    McNulty 370 

Wann  v.  Telegraph  Co 297 

Waples   V.   Jones 242 

Ward  V.  Anderson 51,     53 

Ward  V.  Bandon 242 

Ward   V.    Byrne 311 

Ward  V.  Doncombe 508 

Ward  V.  Johnson 370 

Ward  V  Laverty 5^ 

Ward  V.  Morrison 508 

Ward   V.   Vance 572 

Ward  V.   Vosburgh 413 

Ware  v.  Cartledge 27 

Ware  v.  Manning 427,  429 

Ware  v.  Stephenson 121 

Warehouse  Co.  v.  Duke 597 

Warfield  v.   Booth 312,  316 

Waring  v.  Cunlitf 222 

Waring  v.  Mason 90,  612 

Waring  v.  Railroad  Co 669 

Warner   v.   Bank 399 

Warner  v.  Grace 281 

Warner  v.  Jeftray 407 

Warner  v.  Hale Ill 

Warner  v.  Railway  Co 137 

Warner  v.  Willoughby 128 

Warnock  v.  Davis 267 

Warren  v.  Bank. 515,  521,  524,  526 

Warren  v.  Conings 521 

Warren  v.   Richmond 595 

Warren  v.   Scanlon 248 

Warren    v.    Stoddart 640,051 

Warren  v.  Tyler 599 


Sec. 

Warren  v.  Wheeler 641 

Warren  Deposit  Bank  v.  Rob- 
inson     217 

Washburn  v.   Cutler 493 

Washburn    v.    Dasch 137,313 

Washington  v.  Johnson 613 

Washington  Ice  Co.  v.  Webster     97 

Wason  V.  Railroad  Co 560 

Waterman  v.  Meigs 139,  141 

Waters    v.    Riley 374 

Waters   v.    Stevenson 492 

Watertown     Thermometer     Co. 

V.  Pool 318 

Watkins  v.  Baird 497,  498 

Watkins   v.    Glenn 555,566 

Watkins    v.    Sands 131 

Watson  V.  Brick  Co 686,  687 

Watson  V.  Cresap 448 

Watson  V.  Lane 417 

Watson  V.   Ledoux. .  .425,  458,  483 

Watson   V.   McLarin 94 

Watson    V.    Murray 286 

Watson  V.  Perrigo 131 

Watson  V.  Railroad  Co 561 

Watson  V.   Sherman 99 

Watson  V.   Stever 488 

Watson  V.   Watson 7 

Watson  V.  Wellington 526 

Watt  V.  Cranberry  Co 86,     88 

Watte  v.    Wiekersham 256 

Watterson  v.  Railroad  Co.  .302,  689 

Watts   V.   Camors 240,  420 

Watts    V.    Creswell 70 

Watts  V.  Van  Ness 183,  192 

Waugh   V.   Morris 164 

Waughop   V.   Bartlett 634 

Way    v.    Cutting 448 

Way  v.  Langley 701 

Way  V.  Railroad  Co 292 

Waymeer  v.   Jetmore 13 

Waymell  v.  Reea 414 

Wayniire    v.    Waymire 105 

Wayne  County  v.  Randall. 449,  452 
Wayne    County    Savings    Bank 
v.  Low 240,  395,  408 


860 


TABLE    OF    CASES. 


Sec. 

Waywell  v.  Reid 409 

Weatherford,  etc.  R.  R.  Co.  v. 

Wood 134 

Weatherly  v.   Smith 229 

Weaver  v.   Carpenter 28 

Weaver  v.  Jones 26,  27 

Weaver  v.  Shyrock 374 

Webb  V.  Lumber  Co 122 

Webb   V.   McCauley 283 

Webb  V.  Railroad  Co 144 

Webber   v.   Howe 413 

Webber  v.  Virginia 551 

Weber   v.   Kerkendall 455 

Weber   v.    Squire 683 

Webster  v.  Brown 91 

Webster   v.    Davis 632 

Webster   v.   Enfield 595 

Webster  v.   Fleming 362 

Webster  v.  Le  Compte 80,  100 

Webster  v.  Machine  Co 399 

Webster  v.   Hunger 398,  409 

Webster  v.  Rees 555 

Webster  v.   Seminary 541 

Webster    v.    Wade 602,  605 

Weed  V.  Black 284 

Weed  V.  Ins.   Co 17,   18,  20 

Weed  V.  Jewett 515 

Weed  V.  Page 150 

Weed    V.    Walker 485 

Weeks   v.   Hunt 507 

Weeks  v.  Merrow 47,  470 

Weeks   v.   O'Brien 643 

Weeks  v.   Robie 599 

Weems  v.  Mortg.  Co 228 

Weil    V.    Golden , 398 

Weil   V.   Willard 91,  92 

Weingartner  v.  Probst 667 

Weintz  v.   Haf ner 595 

Weir's    Will 8 

Weis   V.    Denlin 575 

Weisser   v.   Denison 427,  428 

Welch    V.    Bank 428 

Welch    V.    Bunce 58 

Welch   V.   Darling 109 

W^elch  V.  Marvin 122 


See. 

Welch  V.  Mayer 521 

Wellancr  v.   Fellows 478 

Weller  v.  Goble 366 

Weller  v.  State 542,  543 

Weilis    V.    Levy 632 

Wells    V.    Brown 128 

Wells    V.    Calnan 572,575 

Wells   V.    Cook 494 

Wells  V.   Evans 377 

Wells   V.    Foster 283,  517 

Wells  V.  Hartford  Manilla  Co.   594 

Wells  V.  Miller 388,  436 

Wells  V.  Monihan 114 

Wells  V.  People 179,  201 

Wells  V.   Prince 158 

Wells  V.  Railroad  Co 295 

Wells   V.    Stradling 105 

Wells   V.   Vansickle 399 

Welsh  V.   Bank 427,  428 

Weltmer  v.   Bishop 164 

Welty   V.   Jacobs 667 

Welton  V.  Missouri 551 

Wenestine  v.  Freyer 398 

Wenham  v.  State 4,  544 

VVentworth  v.  Woodside 186 

Werner  v.  Humphreys 590 

Werner's    Appeal 43 

Wessel  V.  Land  Co 449 

West  V.  Blackway 656 

West  V.   Camden 274 

West    V.    Greggs 39,     42 

West    V.    Holmes 246 

West  V.  O'Harra 122 

West    V.    Penny 27 

West  V.  Russell 8 

West  V.  Telegr.  Co 693 

West  V.   Wright 249,  256 

Westcott  V.  Hinckley 483 

Westerfield  v.  Bried 237 

Westerfield  v.  Jackson 9 

Western  v.   Sharp 442 

Western    Dist.    Warehouse    Co. 

V.  Hobson 312 

Western,    etc.    Railroad    Co.    v. 

Cotton  Mills 421 


861 


TABLE    OF    CASES. 


fr-jrr 


"Sec. 
Western,     etc.     R.     R.     Co.     v. 

Strong 299 

Western  Transportation  Co.  v. 

Newhall 289 

Western     Union     Tel.     Co,     v. 

Cook 297 

Western     Union     Tel.     Co.     v. 

Blanchard 297 

Western     Union     Tel.     Co.     v. 

Call   Pub.   Co 296 

Western     Union     Tel.     Co.     v. 

Carew 297 

Western     Union     Tel.     Co.     v. 

Crall 297 

Western     Union     Tel.     Co.     v. 

Crawford 297 

Western     Union     Tel.     Co.     v. 

Fenton 297 

Western     Union     Tel.     Co.     v. 

Ferguson 693 

Western     Union     Tel.     Co.     v. 

Griffin 188 

Western     Union     Tel.     Co.     v. 

Hall 297,  696 

Western     Union     Tel.     Co.     v. 

Howell 297 

Western     Union     Tel.     Co.     v. 

James 549 

Western     Union     Tel.     Co.     v. 

Linn 297 

Western     Union     Tel.     Co.     v. 

Littlejohn 248 

Western     Union     Tel.     Co.     v. 

Lyon 297 

Western     Union     Tel.     Co.     v. 

Meek 297 

Western     Union     Tel.     Co.     v. 

Railroad  Co 308 

Western     Union     Tel.     Co.     v. 

Stevenson 297 

Western     Union     Tel.     Co.     v. 

Telegraph  Co 304,  308 

Western     Union     Tel.     Co.     v. 

Wilson 188,  297 


Sec. 
Western     Union     Tel.     Co.     v. 

Yopst 188 

Western  U.  R.  R.  Co.  v.  Bishop  299 
Western    Wooden    Ware    Asso. 

V.  Starkey 312 

Westfall   V.   Parsons 124 

VVestlake  v.  Adams 448 

VVeestmoreland   v.    Porter 96 

Westropp  V.  Solomon 448 

West    Virginia    Trans.    Co.    v. 

Pipe   Line    Co 304,  324 

West    Virginia    Trans.    Co.    v. 

Standard  Oil  Co 304 

Wetherbee  v.  Potter 101 

Wetherell  v.  Langston 377 

Wethwell  v.  Jones 177 

Wetmore   v.   Pattison 696 

Wettingham's  Case 66 

VVeyburn   v.   White 259 

Whalen   v.    Sullivan 83 

Whaley  v.  Hinchman 85 

Whaley  v.  Mort.   Co 211,  228 

Whaley   v.    Peak 425 

Wharton  v.  Mackenzie 41 

Wheadon  v.  Olds 427,  450 

Wheat  V.  Rice 354 

VVheatly  v.  Baugh 345 

Wheaton  v.  East 65 

Wheaton  v,  Hibbard 500 

Wheelan  v.  Clock  Co 575 

Wheelden  v.  Lyford 186 

Wheeler  v.  Collier 166 

Wheeler   v.    Frankenthal Ill 

112,  135 

Wheeler    v.    Jackson 528,638 

Wheeler  v.  Reynolds 103 

Wheeler  v.  Russell 196,  205 

Wheeler  v.  Spencer 246 

Wheeler   v.    Stewart 356 

Wheeler  v.    Walton 519 

Wheeler   v.   Wheeler 275 

Wheelock  v.   Lee 243 

Whelan  v.  Sullivan 92 

Whelen  v.  Boyd 645 


862 


TABLE    OF    CASES. 


See. 

Whelpdale'g    Case 368 

Whipple  V.   Dow 470 

Whipple  V.  Fowler 403 

Whipple    V.    Parker 108,  110 

137,  479 

Whichcote  v.  Lyle 27 

Whitaker  v.  Sandifer 603 

Whitaker  v.   Security  Co.. 396,  399 

Whitcomb  v.   Oilman 188 

Whitcomb   v.   Joslyn 67,     68 

White   V.   Allen 590 

White  V.  Bank 330 

White  V.  Barber 249,  413 

Wliite    V.    Breen 92 

White  V.  Buss 176,  461 

White  V.  Cook 280 

White  V.    Core 83 

White   V.    Farley 7 

White  V.   Gardner 15 

White  V.  Hart 560 

White  V.   Henry 29,     47 

White  V.  Hermann 92 

White  V.  Holland 135 

White  V.  Ins.  Co 18 

White   V.    Jones 457 

White  V.  Joyce 72,     73 

White  V.  Knapp 140 

White  V.  Levy 135 

White  V.  Mann 588 

White  V.  Miller 685 

White  V.  Oliver.. 473,  477,  651,  652 

White  V.  Palmer 12 

White  V.  Prentiss 508 

White  V.  Rintoul 127,  663 

Whitesides  v.   Hunt.. 249,  251,  255 
Whitford  Chemical  Co.  v.  Hard- 
way  677 

Whiting  V.  Ohlert 135 

Whiting  V.   Sullivan 457 

Whitlock    V.    Doolittle 634 

Whitmarsh  v.  Hall 62 

Whitmore  v.   Montgomery.  183,  184 

Whitney  v.  Cowan 526 

Whitney  v.  Dutch 65 

W  hitney  v.  Port  Huron 456 


Sec. 

Whitney  v.   Spencer 568 

Whitney  v.    Stearns 94 

Whitney  v.   Stayton 312 

Whitney   v.    Whitney 408 

Whitstine   v.    Wilson 467 

Whitstone  v.  Shaw 433 

Whittemore  v.  Cope 37 

Whittemore  v.  Gibbs 144 

Whittemore   v.   Wentworth .  .  .  .    125 

Whittingham   v.   Hill 44 

Whitwarth  v.  Adams 212 

Whitworth  v.  Hart 691 

Wibert  v.  Railroad  Co 615 

Wick  China  Co.  v.  Brown 336 

Wick   V.   Dawson 419 

Wicker  v.   Hoppoch 169,  364 

Wickham    v.    Wickham 87 

Wieland   v.    Kobick 67,     68 

Wier  V.  Batdorf 84 

Wiggin    V.    Bush 171 

Wiggin  V.  Cumings 377 

Wiggins  V.   Burkham 428 

Wiggins  Ferry  Co.  v.  Railroad 

Co 308 

Wigglesworth    v.    Dallison....    136 

Wightman  v.  Wightman 400 

Wilbaux  V.  Live  Stock  Co. 368,  382 

Wilbur   V.   How 167 

Wilbur    V.    Wilbur 356,361 

Wilcox  V.  Fitzhugh 12 

Wilcox  V.   Howell 276 

Wilcox,  etc.  Co.  v.  Green 116 

Wilcoxson  V.  Andrews 281 

Wild  V.   Williams 377 

Wilder   v.    Collier 500 

Wilder  v.  Pigot 32 

Wilder   v.    Weakley 14,  472 

Wilder's    Succession 401 

Wildes  v.  Dudlow 96,   123,  129 

Wildey  v.  Collier 284,  286 

Wiley   V.    Starbuck 232 

Wilhelm    v.    Fagan 83 

Wilhelm  v.  Hardman 43 

Wilhelm  v.  Voss 132 

^Vilkie  V.  Womble 109 


863 


TABLE    OF    CASES. 


See. 

Wilkinson  v.  Heavenrich 98 

Wilkinson  v.  Lindo 377,  381 

Wilkinson   v.    Towsley 246 

Wilkinson  v.  Verity 604 

Wilkinson    v.    Wilkinson.  .  145,  491 

Wilks   V.    Rich 663 

Willard  v.  Bosshard 125 

Willard  v.  Ford 668 

Willard    v.    Sperry 521 

Willes  V.  Greenhill 608 

Willett  V,    People 540 

Willet    V.    Willet , 488 

Willetts  V,  Waite 406 

Willey  V.  Paulk 635 

Williams  v.  Association 220 

Williams    v.    Bacon 83,     90 

Williams  v.  Bagley 330 

Williams  v.  Bank 568 

Williams  v.  Banks 212 

Williams    v.    Bemis 480,482 

Williams  v.  Bradley 373 

Williams  v.  Brown 27 

Williams  v.  Burgess 140 

Williams  v.  Butler 355 

Williams  v.  Byrnes 88 

Williams  v.  Cheney 196 

Williams  v.  Davis 118 

Williams  v.  Flowers 229 

Williams  v.  Fitzhugh 241 

Williams  v.  Gitchell 624 

Williaume  v.  Gorges 627 

Williams  v.  Grant 583 

Williams  v.  Hance 221 

Williams   v.   Harrison 27,  468 

Williams    v.    Hastings 189 

Williams  v.  Hitchings 378 

Williams  v.  Jones 629 

Williams  v.   Knight 32 

Williams  v.  Ladew 491 

Williams  v.  Lake 88 

Williams  v.  Leper 128 

Williams  v.   Mershon 99 

Williams  v.  Montgomery 670 

Williams  v.   Moore 27 

Williams  v.   Morris 86,     91 


Sec. 

Williams  v.  Gates 178 

Williams   v.    Paul 192 

Williams  v.  Rich 229 

Williams  v.  Robinson 91,     98 

Williams   v.   Schmidt 640 

Williams  v.   Smith 85 

Williams  v.  Tiedemann 255 

Williams  v.  Vanderbilt 588 

Williams  v.  Webb 521 

Williams  v.  Wentworth 11,  471 

Williams  v.  Williams 485 

Williamson  v.  Railroad  Co 302 

642,  643,  645 

Willingham    v.    Hooven 697 

Willis   V.    Cutter 125 

Willis  V.   Hammond 83 

Willis    V.    Jernegon 7 

Willis  V.  Railroad  Co 288 

Willis  V.   Twombley 27 

Willis  V.  Webster 661 

Willoughby  v.  Irish 384,  634 

Wills  V.   Bank 131 

Wills  V.  Ross 122 

Willson  V.  McCormick 368 

Willworth   V.   Leonard 12 

Wilson  V.   Barker 450 

Wilson  V.  Branch 64 

Wilson   V.    Carson 402 

Wilson  V.  Duncan 37 

Wilson  V.  Force 464 

Wilson    V.    Fuller 80 

Wilson  V.  Harvey 234 

Wilson   V.   Hentges 128 

Wilson  V.  Hunter 90 

Wilson  V.   Irish 600 

Wilson  V.  McMillan 470 

Wilson  V.  Milligfu 192 

Wilson  V.  Mills  Co 115 

Wilson  V.  Picknick  Co 665 

Wilson  V.  Porter 66 

Wilson  V.  Railroad  Co 288,  293 

424,  668,  676,  683,  684,  689 

Wilson  V.  Ray 137 

Wilson   V.    Voss 130 

Wilson  V.  Wallace 377 


864 


TABLE    OF    CASES. 


Sec. 

Wilson  V.   Wilson 460 

Wilson  V.   Winter 185 

Wilton  V.  Tazwell 434 

Wimarcl  v.  Lincoln 399 

Winchell  v.  Hicks 634 

Winchell    v.    Carey 192 

Winchell  v.  Noyes 464 

Winchester    v.    Howard 457 

Winchester   v.    Thayer 66 

Winchester   Electric  Light   Co. 

V.  Veal 173,  330 

Windhand  v.  Deeds 460 

Windmuller  v.  Pope 594 

Winfield  v.  Dodge 192 

Wingo  V.   Brown 444 

Winkle  v.  Ketchani 61 

Winn  V.   Investment   Co 353 

Winne  v.  Keeley 697 

Winona,  etc.  R.  R.  Co.  v.  Blake  539 

Winslow  V.  Anderson 30 

Winsor  v.  Savage 430,  431,  432 

Winston  v.   Beeson 270 

Winston  v.  Dalby 376 

Winter   v.    Hite 129 

Winters  v.    Cherry 137 

Wirebach    v.    Bank 24 

Wiseman  v.  Thompson 665 

Wiser   v.    Lockwood 13 

Witherall  v.  Jones 196 

Witherby  v.   Mann 389 

Witlers    v.    Richardson 628 

Wittkowski    v.    Harris 240,241 

Wolcott    V.    Frissell 1 

Wolcott  V.   Heath 598 

Wolf  V.  Burk 101,  115,  403 

Wolf  V.   Dietzsch 598,  599 

Wolf  V.  Dozer 135 

Wolf  V.  Express  Co 583 

Wolf  V.   Gerr 474 

Wolf    V.    Shannon 402 

Wolf  V.  Studebaker 687 

Wolfe  V.  Howes 475,  589 

Wolfe  V.  Luyster 168 

Wolff  V.  Kappel 87 

Wolff  V.  New  Orleans 560 


Sec. 

Womack  v.   Smith 674,  675 

Wonsettler  v.   Lee 110,  479 

Wood    V.    Armstrong 196 

Wood   V.   Brady 531 

Wood  V.    Carpenter .  .  625,    626,  630 

Wood  V.  Corcoran 130 

Wood  V.  Fisk 374 

Wood  V.   Ins.  Co 404 

Wood  V.  Leadbetter 509 

Wood  V.  Losey 44 

Wood  V.  Mayor 490 

Wood    V.    McCann 284 

Wood   V.   Moriarity 352,  357 

Wood    V.    Sheldon 448 

Wood  V.  Partridge 508 

Woodford  v.  Hamilton 205 

Woodford   v.    Levenworth 432 

Woodland  v.  Newhall 356 

Wood  Reap.  &  Mow.  Mach.  Co. 

V.  Smith 614,  639 

Woodruff  V.   Berry 305 

Woodruff  V.   Hill 258,  399 

Woodruff  V.   Hinman 204 

Woodruff  V.  Marshall 703 

Woodruff    V.    Mississippi.. 278,  529 

Woodruff  V.  Parham 551 

Woodruff  V.  Wentworth.  ..164,  204 
Woods  V.  Armstrong.  178,   197,  202 

Woods    V.    McGee 148 

Woods  V.    Russell 675 

Woodstock  Iron  Co.  v.  Exten- 
sion Co 163,  284,  285,  302 

305,  324 

Woodward  v.  Brooks 406 

Woodward  v.  Fuller 640,  666 

Woodward  v.  Newhall 369 

Wooley   v.   Batte 437 

Wooliver  v.  Ins.  Co 185 

Woolsey   v.    Jones 210 

Wooster  v.  Sage 140 

VVooten  v.  Hinkle 165 

Wooten   V.   Miller 301 

Wooten  V.  Wilcox 128 

Worcester   v.    Eaton 57 

Worden  v.    Sharp 137 


865 


TABLE    OF    CASES. 


Sec. 

Work  V.  Welsh 680 

Workman  v.  Campbell 284 

Worley  v.   Hineman 403 

Worley    v.    Lyon 399 

Worley  v.  Sipe 133 

Wornock  v.  Loar 46 

Worrall  v.  Munn 99 

Wright    V.    Augusta 349 

Wright  V.   Barnes 612 

Wright  V.  Boiling 416 

Wright  V.   Crabbs 330 

Wright  V.  Dickenson 448 

Wright  V.  Eisle 339 

Wright    V.    Ellison 524 

Wright   V.   Gardner 173,330 

Wright  V.  Haskell •   595 

Wright  V.  Johnson 632 

Wright  V.  Jones 113 

Wright  V.  Post 377 

Wright  V.   Pucket 103 

Wright  V.  Rindskotf 286 

Wright  V.  Terry 348,  352 

Wright  V.  Tinsley 667 

Wright's  Appeal 467 

Wunch  V.   Shankland 335 

Wycoff   V.    Mickle 87 

Wycoff  V.   Meyers 646 

Wynian  v.  Adams 66 

Wyman  v.  Goodrich 128 

Wynne    v.    Raikes 124 

Wynne  v.  Wright 551 

Wynne   v.    Wynne 532 

Yale  V.   Wheelock 369 

Yanger  v.   Skinner 12,   22,     25 

Yates   V.    Boen 9 

Yates  V.  Foot 382 

Yates  V.   Lyon 60 

Yates  V.  Milwaukee 540 

Yates  V.  Robertson 199,  284 


Sec. 

Yeates  v.  Groves 526 

Yeatman  v.  Cullen 258 

Yellow  Stone  Kit  v.  State. 270,  271 

Yenni  v.  McNamee 513 

Yerger  v.  Raines 418 

Yerkes  v.   Saloman 255 

Yerrinton  v.   Green 475,  592 

Yick  Wo  V.  Hopkins 547 

Yoeman   v.   Mueller 121,  132 

Yonoski  v.  State 188 

Young  V.   Clark 391 

Young  V.  Commonwealth 270 

Young   V.    Drake 135 

Young  V.  French 121 

Young  V.  Glendenning 106 

Young  V.  Hail 170 

Young  V.  Hicks 341 

Young  V.  Hill 222 

Young  V.   Jones 515 

Young  V.  Lambert 513 

Yoimg  V.  Lyons 391 

Young  V.  Overbraugh 106 

Young  V.  Railroad  Co.  .64,  294,  337 

Young  V.   Stevens 14,   22,  599 

Young  V.  Telegr.  Co 693 

Younge  v.  College 485 

Young  Lock  Nut  Co.  v.  Manuf. 
Co 667,  668,  671 

Zabriskie  v.   Smith 518 

Zachry   v.   Nolan Ill 

Zaleski  v.  Clark 614,  639 

Zanesville  v.   Gaslight  Co. 534,  538 
Zang  Brewing  Co.  v.  Bernheim  445 

Zillmer  v.   Kreutzberg 175 

Zoebisch  v.  Rauch 55 

Zouch    v.    Parsons 27,     28 

Zuck  V.   Gulp 628 

Zuck  V.  McClure 594,  608 


866 


INDEX. 

(References  are  to  the  sections.) 


ACCEPTANCE—  Sec. 

oral,  of  order  in  existence  not  within  the  statute  of  frauds....    124 

of  bill  of  exchange  in  existence  by  parol  is  valid 124 

what   is — when    question   for   jury 147 

goods   delivered   subject   to   examination 148 

by  vendee — intention 150 

acts  which  amount  to 151 

how  proved 151 

designation  of  carrier  by  vendee 152 

of  promise  by  third  person 355 

as  to  minors 355 

of  voluntary  act  of  another — effect 457 

voluntary  acceptance  of  benefits — implied   contract 458 

of  contract  partly  performed 477 

orders  given  by  one  and  filled  by  another — effect 478 

of  theater  ticket  with  conditions 509 

when  necessary  in  rescission  of  contract,  to  make  it  effective.  .  .  .    594 

of  work — partial  payment  as  evidence  of 652 

of  labor  on  building 664 

ACCOMMODATION  INDORSEE— 

defense  of  insanity 14 

may  avoid  his  indorsement,  when 24 

ACCOUNT  STATED— 

by  infant  is  voidable 27 

fraud  or  mistake  in — effect 427 

whether  a  passbook  is 428 

burden  of  proof  .  .  .   429 

ACKNOWLEDGMENT— 

when  defective — how  cured 532 

ACTIONS— See  Remedies. 

by  indorser  against  lunatic  on  note 14 

to  dissolve  partnership — insane  partner 15 

by  infant,  as  an  affirmance  of  contract 65 

can  be  sustained  against  infant  for  fraud 69 

by  infant  to  avoid  contract 71 

no  action  shall  be  brought— statute  of  frauds — meaning 100 

867 


INDEX. 

ACTIONS—  ( continued )  gg^^ 

statute  of  frauds  affects  remedy 100 

as  to  voidable  and  void  contracts 101 

to  recover  back  money  lost  in  gaming 259    261 

constitutionality  of  statute  to  recover  back  money  lost  at  gaming  260 

to  recover  money  won  at  a  guessing  contest 272 

to  recover  for  lobbying  contract 284 

for  injury  received  by  one — maliee 315 

to  enforce  illegal   contract 330 

legality  at  the  time  of  enforcement 332 

against  parties  in  combination  not  a  corporation 334 

for  injury  from  combination  of  vi^orkmen 334 

for  malicious  interference  between  master  and  servant 341 

rights    of    parties. . 341 

for  malicious  interference  in  any  contract 342 

by  master  for  interference  with  his  servant 344 

doing  an  act  legal  within  itself 345 

fraudulent  representations  of  third  party 346 

for  servant  to  sustain  action  against  third  party,  he  must  be  dis- 
charged      347 

when  third  party  can  maintain — contract  for  his  benefit 348 

against  water  companies 349 

on  contract  for  benefit  of  third  person 355-357 

brought  by  next  of  kin,  for  promise  made  for  the  benefit  of  his 

father 361 

who  may  bring  action  on  simple  contracts 364 

how  brought  against  many  promisors 367 

covenant  to  not  sue,  effect 376 

by   joint   obligees 376,  377 

by  joint  creditors — how  brought 382 

how  brought — joint  debtors 386,  387 

when  surety  can  bring  against  co-surety 391 

for   collection   of   tolls 423 

to  recover  forged  check — negligence  of  depositor 428 

to  recover  back  money  paid  on  a  void  contract 443 

on   implied    contracts 444 

for  money  had  and  received — when  property  is  received 446 

in    illegal    contracts 447 

no  consideration  in  contract — recovering  back  money  paid 448 

where  vendor   partially   fails   to   deliver 448 

to  recover  money  voluntarily  paid 449 

under  mistake  of  fact — effect 450 

to  recover  back  commission  wrongfully  paid  the  agent 451 

to  recover  back  taxes  illegally  paid 452 

to  recover  money  illegally  paid  for  taxes  and  assessments ' .   456 

waiving  tort — suing  in  assumpsit 464 

to  enforce  oral  agreement  to  bequeath  or  devise  property 466 

868 


INDEX. 

ACTIONS— (co)itinued)  Sec. 

to  recover   for   part  performance 473,  474 

to  recover  for  part  performance  of  void  contract 479 

under  no  obligation — part  performance 480 

to  recover  expenses  of  funeral 485 

to  recovery  for  part  performance  of  void  contract 479 

for  tort — election  of  actions 487 

doctrine  that  the  property  taken  must  be  sold 488 

to  recover  money  paid   under  duress 496,  497 

payment  of  husband's  debt  by  wife — duress 499 

to  recover  money  paid  in  compounding  felony 500 

to   recover    back    money   voluntarily    paid 501 

cannot  be  split  up 521 

reduction  of  time  to  bring — effect 528 

limitations  are  part  of  the  contract 528 

changing  procedure — effect  on  the  contract 565 

when  may  be  brought  for  rescission  of  contract 594 

when  notice  of  rescission  of  contract 597 

to  recover  back  consideration — contract  rescinded 599 

to  recover  money  back  on  a  sealed  contract — assumpsit 601 

for  constructive  services 603 

for  services  to  be  performed 604 

for  damages  for  rescinding  contract  for  work  on  personalty 608 

for    damages   for   affixing   machine   to   real   estate — rescission   of 

contract 609 

when  statute  of  limitations  runs 628 

on  note  on  demand 628 

time  to  bring  against  debtor  absent  from  State — statute  of  limi- 
tations     632 

by  creditor  out  of  State — statute  of  limitations ^ 633 

statutes  controlling  the  limitations  for  bringing  suit  are  valid . .   636 
for    services    received 651 

ACTIONS  EX  DELICTO— 

infant  is   liable  for 69 

ACT  OF  GOD— 

preventing  fulfillment  of  contract  to  marry — efl'ect 476 

may  excuse  performance  of  contract 580 

as  to  common  carliers 582,  583 

where  law  imposes  a  duty 584 

failvire  of  consideration  by  act  of  God 586 

intervention  of  the  act  of  God 588 

definition  of   580,  615 

that  will  excuse  a  common  carrier  to  deliver  goods 616 

ACTORS— 

specific  performance  of  contract 677 


869 


INDEX. 

ACTEESS—  Sec. 
breach  of  contract  by  manager — duty  of  actress  to  seek  other  en- 
gagement     686 

ADMINISTRATOR — See  Executors     and  Administrators. 

when    liable   for    debts 485 

ADVERSE  POSSESSION— 

of  land — taking  trees  and  stone — right  of  real  owner 493 

AFFIRMANCE— 

of   insane    person's    contracts 21 

necessity  of  ratifying  contract  made  by  minor 51 

■  when  affirmed — valid  ab  initio 51 

of  infant's  contract — what  is 53 

upon  condition 54 

on   condition  of   infant's   contract 54 

time  to  affirm 55 

silence  as   an   affirmance 56 

how  are  infants'  contracts  affirmed 65 

of  guardian's  contract,  by  ward 75 

of  rescission  of  contract 600 

by  silence,  of  rescission 600 

AFFREIGHTMENT— 

interstate    contracts    of 421 

AGENCY— 

signing  for  principal — must  have  authority 99 

power  to  sell  land — not  authorized  to  make  deed 99 

sale  of  principal's  goods — parol  warranty  is  part  of  consideration  140 
when  third  party  can  be  interested  in  contract — rights  of 348 

AGREEMENTS— 

contracts  made  in  violation  of  statutes 173 

peonage  contracts 174 

prohibition  and  penalty 175 

malum  prohibitum  and  m^alum  in  se 176 

penalty  imposed   for  administrative   purposes 177 

acts   impliedly   prohibited 178 

what  cannot  be  done  by  direct  means 179 

AGREEMENT    NOT    TO    BE    PERFORMED    WITHIN    A    YEAR— See 
Frauds,  Statute  of. 

what  contracts  are  within  the  statute 133 

contracts  not  within  the  statute 134 

one  year  from  the  making  thereof ...    135 

parol  lease  of  land  for  a  year 136 

part  performance  within  a  year — performance  on  one  side 137 

AGREEMENTS,  STATUTE  OF  FRAUDS— SEVENTEENTH  SECTION— 

application   of   statute 138 

executed  and  executory  contracts 139 

taking  back  chattels  after  sale 140 

price 141 

8Y0 


INDEX. 

AGREEIMENTS—  ( continued )  Sec. 

amount  of  sale 142 

sale   of   several   articles 143 

goods,  wares  and  merchandise 144 

delivery  and  acceptance 145 

contracts  for  work  and  labor 146 

what  is  an  acceptance — when  question  for  jury 147 

goods  delivered  subject  to  examination — acceptance 148 

intention 149 

property  in  possession  of  third  party 150 

acts  which  amount  to  an  acceptance 151 

designation  of  carrier  by  vendee — delivery  of  goods 152 

earnest  and  part  payment 153 

when  part  payment  must  be  made 154 

what   constitutes   part   payment 155 

in  what  property,  part  payment  may  be  made 156 

ALIEN— 

labor  acts 422 

object  of  alien  labor  acts 422 

ALTERATION— 

of  written  contract,  under  the  statute  of  frauds 81 

of  remedy 556 

ANCESTOR— 

death  of — running  of  the  statute  of  limitations 631 

APPEAL  BOND— 

of  infant  is  voidable 27 

APPOINTMENT— 

to  public  office  is  not  a  contract 426 

APPRENTICE— 

cannot  be  assigned  over  by  master 519 

ARBITER— 

condition   in   contract  for 642 

arbitration  clause 643 

decision  of,  must  be  pertinent 644 

fraud 645 

ARBITRATION— 

provision  in  contract  for  arbiter  as  to  performance 642 

clause  of 643 

the  arbiter's  decision  must  be  pertinent 644 

fraud 645 

ARCHITECT— 

publishing   his   plans — right   of   property  in 339 

assignment  of  future  wages — controlled  by  statute 515 

assignment  of  wages   forbidden  by   statute — effect 515 

as  arbiter  in  building  contracts 643 

ARREST— 

of  servant — effect  of  on  contract  with  master 578 

8Y1 


INDEX. 

ARTIST—  Sec. 

contract  with — cannot  be  assigned 519 

agreeing  to  paint  picture — death  of — effect  on  contract 589 

specific   performance   of   contract 677 

ASSESSMENTS— 

payment  of — illegality  of  when  payment  is  voluntary 456 

ASSIGNMENTS — See  Assignor  and  Assignee. 

by  infant — when  valid 30 

for  benefit   of   creditors 170 

of  insurance  policy,  valid  in  its  inception — effect 267 

of  unearned  compensation  of  ofiicer 283 

of  contract — stranger  has  no  right  in 348 

of  water  contract  by  city 350 

of  judgment — is  legal  title  transferred 395 

of  policy  of  insurance — wliat  law  governs 405 

of  property — interstate 406 

voluntary   for   benefit   of  creditors 506 

set-off  against  assignment 507 

priorities 508 

coupons — theater  tickets 509 

bills   of   lading 510 

drawing  drafts  by  consignor 511 

bills   of   lading — negotiability 512 

warehouse  receipts 513 

nature  of  warehouse  receipts 514 

in  equity  unearned  wages 515 

effect  of  assignor's  discharge  in  bankruptcy 516 

unearned  salary  of  public  officer 517 

what    is    assignable 518 

of  personal  trusts  involving  personal  skill 519 

of  expectancies 520 

partial   assignments   at   law 521 

partial  assignments  with  consent  of  debtor 522 

partial  assignment — city  as  debtor 523 

partial   assignments   in   equity 524 

difference  between  an  equitable  and  legal  assignment 525 

of  things  not  in  existence — effect 525 

when  partial  assignment  will  be  sustained 526 

modification    by    statute 527 

of  claim  to  be  collected  in  another  State — statute  controlling  is 

valid 540 

ASSIGNOR  AND  ASSIGNEE— See  Assignments. 

assignor  of  promissory  note — guaranty  of  payment  need  not  be 

in  writing 128 

receipt  of  property  out  of  which  to  pay  debt  of  another — must 

agreement    be    in    writing 131 

assignment  for  benefit  of  creditors 170 

8Y2 


INDEX. 

ASSIGNOR  AND  ASSIGI^EE— (continued)  Sec. 

taking  insurance  policy  valid  in  its  inception 267 

assignee  of  unearned  salary — rights  of 283 

assignee  of  the  property  of  a  combination — notice  of  fraud 321 

assignee    taking    property — rights    of 340 

when  there  is  no  privity  of  contract 340 

assignee  taking  property  to  pay  assignor's  debts 352 

assignment   of   insurance   policy 405 

assignment    of    property 406 

rights  of  assignee  in  voluntary 506 

rights  of  assignee  of  stolen  bill  of  lading 512 

rights  of  assignee  of  unearned  wages 515 

ASSOCIATED  PRESS— 

whether  a  monopoly 322 

ASSUMPSIT— 

for  collecting  tolls 423 

will  not  lie  for  voluntary  payment 430 

creditor  accepting  voluntary  payment — debt  extinguished 430 

when  it  lies  for  money  paid  by  another 431,  432 

lies  for  saving  of  another's  property 435 

does  not  lie  on  a  sealed  instrument 442 

does  not  lie  for  express  promise  of  record 442 

when  not  implied 457 

implied — waiving  a  tort 464 

suing    in — waiving    tort 486 

when  tort  may  be  waived 487 

doctrine  that  the  property  must  be  sold 488 

implied  assumpsit  lies  for  trees  and  stone  converted 492 

right  of  agent  to  bring 494 

to  recover  money  paid  under  a  sealed  contract 601 

ATTORNEY— 

appointment  of,  by  minor  to  confess  judgment  is  void 28 

fees — when  infant  must  pay 43 

procuring    legislation — validity v. 285 

fees  of,  in  pension  cases  may  be  limited  by  Congress 540 

when  statute  of  limitations  runs  against  payment  of  retainer .  .  .  628 

ATTORNEY'S  FEES— 

when  payable  by  borrower — whether  usurious 229 

AUCTION— 

by-bidding — effect  on  sales , 165 

English  doctrine 166 

stiptihition  not  to  bid — efl'eet 167 

AUCTIONEER— 

sale  by — evidence   of  memorandum 87 

AUTHOR— 

agreement  to  write  a  book — death  of — effect  on  contract 589 

contract  to  write services 677 

873 


INDEX. 

AVOIDANCE—  Sec. 

of  insane  person's  contracts 21 

of  sale  by  insane  person 22 

of  contract — return  of  consideration  by  insane  person 23 

of    contract   by    infant — a    privilege,    not    a    disability — they    are 

compos  mentis 26 

of  marriege  contract  — non-age 31 

of  infant's   contract  in   shopping 38 

of  infant's  contracts 57 

as  to  personal   contracts  of  infant 58 

of  personal  contract  by  infant,  when 58 

of  sale  of  real  estate — when 58 

what  is  a  reasonable  time  to  avoid 59 

of  infant's  contract  for  service 62 

of  infant's  beneficial  contracts 63 

return  of  consideration  by  infant 64 

how   is   infant's   contract   avoided 65 

who  may  avoid  infant's  contract 66 

of  infant's  contracts  cannot  be  by  a  stranger 66 

can  be  made  by  privies  in  blood 66 

cannot  be  by  privies   in  estate 66 

when  avoided  by  infant's  administrator 66 

by  infant  of   contract  by   action 71 

BAGGAGE— 

implied  contract  to  send  on  same  train  with  passenger 424 

BAIL — See  Bailment;  Bailee. 

indemnity  of,  by  principal — illegal 129 

indemnity  by  third  person  is  legal 129 

depositing  money   for   security 129 

BAILEE — See  Bailment. 

liability  of  infant,  as 68 

when  railroad  company  is  as  to  baggage  shipped — liability 424 

of    materials — loss — liability 575 

BAILMENT— See  Bailee. 

responsibility — of    infant 68 

of  an  article  to  be  repaired — performance 575 

BANKRUPTCY— 

of  partner,   effect  on   partnership 15 

of  infant — discharge  of  debts 57 

discharge  of  laborer — etiect  on  assigned  wages  for  the  future.  .515,  516 

discharge  of  insolvent — efi'ect  on  judgment 578 

discharge  of  principal — effect  on  surety's  liability 635 

effect  of  conditional  sale 704 

BANKS— 

depositor   in — pass-book   written   up 428 

when  may  recover  back  overpayment 450 

874 


INDEX. 

BANK'S  COMMISSION— See  Commission.  Sec. 

taking — when    usury 216 

BARBERS— 

when  may  work  on  Sunday 188 

BARGAIN  AND  SALE— 

of  lunatic 9 

deed  of  insane  person — equal  to  a  feoffment 21 

BAR-MAIDS— 

i-egulation  of  occupation  by  legislature 544 

BENEFIT  ASSOCIATION— 

servant  receiving  benefits  from — limiting  master's  liability 300 

BENEVOLENT  ASSOCIATIONS— 

rights  of  beneficiary 269 

to  whom  benefit  must  be  paid 269 

BEQUEST— 

oral  agreement  to  bequeath 465 

BETTING — 

on  horse  races — whether   gambling 263 

BILLS  AND  NOTES— 

of  insane  persons 9 

of  infants,  for  torts,  are  valid 34 

of  insane  persons — effect 14 

of  infant  are  voidable 27 

of  minor  are  voidable — but  warrant  of  attorney  is  void 28 

of  emancipated  minor  are  voidable 29 

holder   of  infant's  note  must   demand   payment  of  him   to  hold 

indorser 66 

holder  of — guaranteeing  its  collection  by  parol  is  liable 128 

confession  of   judgment   on   note   does   not   make  the   contract  to 

pay   an   executed   contract 184 

executed  on  Sunday — delivered  on  Monday — effect 185 

note  made  on   Sunday — void — in  the  hands  of  an  innocent  third 

party — effect 193 

note  dated  on  Sunday — delivered  on  secular  day — effect 194 

contracts  executed   on   Sunday 195 

discount  of  accommodiition  paper — when  usury 212 

taking  usury  by  national   banks 232 

renewal — tainted   with   usury 234 

rights  of  innocent  holder  of  note  given  for  gambling  contract. .  .  .   257 
rights  of  innocent  holder  of  note  given  for  gambling  contract  in 

another   State   258 

payable  in  gold  coin 278 

what    law    governs — interstate 399 

secured  by  mortgage  of  land 399 

made  to  pay  option  contracts — payable  in  another  State 413 

given  for   liquor — another   State   law 413 

875 


INDEX. 

BILLS  AND  NOTES— (confmMcd)  Sec. 

is  a  note  payment 441 

payment    by    bond — effect 441 

selling  forged  paper — recovering  back  money  paid 448 

given  to  compound  a  felony — illegal 500 

holder  of  stolen  note  with  notice 502 

in  the  hands  of  an  innocent  holder — subject  of  larceny 504 

given  for  antecedent  debts 504 

in  the  hands  of  an  innocent  holder — stolen  from  owner 505 

negotiability  of  coupons 509 

negotiability  of  bills  of  lading 512 

payable  on  demand — as  to  statute  of  limitations 628 

note  secured  by  mortgage — running  of  statute  of  limitations....  629 

part  payment  by  one  joint  debtor — as  to  the  statute  of  limitations  634 

BILLS  OF  EXCHANGE— 

in  existence  — verbal  acceptance  is  valid 124 

to  be  drawn  in  the  future  are  within  the  statute,  as  to  acceptance  124 

BILLS  OF  LADING— 

stipulation  exempting  common  carrier  from  liability — notice....  290 

what   law   governs 421 

as  to  assignment  of  rights  of  assignee 510,  511 

negotiability  of 512 

BLACKLISTING— 

by   employer — of   union    laborers 337 

statute  against 337 

BOARD  OF  EDUCATION— 

contracting  to  employ  only  union  labor — validity 301 

compelling  contractors  to  employ  only  union  laborers — legality..  317 

BOARD  OF  TRADE— 

dealing   in    futures — when   void 248 

options — futures — margin 249 

corners  in  grain 250 

brokers 251 

designation  of  transaction  by  different  name 252 

construction    of   gambling   contracts 253 

intent — deal   in  futures 254 

selling  commodities  not  in  existence 255 

parol  evidence 256 

rights  of  innocent  holder  of  note  given  on  option  contract 257 

BONDS— 

of  infants  with  a  penalty  are  voidable 27 

coupons  of — negotiability 509 

BOOK  ACCOUNTS— 

as  evidence  to  place  liability 126 

BOOKMAKING— 

difference  from  pool  selling — betting  on  horse  races 264 

8Y6 


BONUS—  Sec. 

for  making  a  loan — when  usury 216 

BOUNDARIES— 

settlement  of  by  infant  is  voidable 27 

BOYCOTT— 

when  illegal 341 

by  State — legality 341 

rules  controlling 341 

BREACH — See  Breach  and  Discharge. 

of    contract — anticipatory,    effect 594 

of  contract — giving  party  right  to  rescind 595 

of  building  contract — what  is 662 

BREACH  AND  DISCHARGE— See  Breach. 

object  in  awarding  damages  for  breach  of  contract 682 

rule  for  estimating  damages 683 

damages  as  to  common  carrier 684 

sale  of  property  for  special  purpose 685 

for  personal  services — duty  of  laborer  to  protect  himself 686 

contract  not  for  the  use  of  some  special  instrumentality 687 

part  performance 688 

appreciation  in  the  value  of  land 689 

uncertain  and   contingent   damages 690 

interest  upon  unliquidated   damages 691 

breach  by  telegraph  companies 692 

breach  by  telegraph  company — mental  suffering 693 

contract  to   furnish   special   material 694 

profits  as  damages — general  rule 695 

profits  which  would  have  been  made 696 

contingent    profits    not    allowed 697 

resale  by  purchaser 698 

building  contracts 699. 

BRIBE— 

contracts  to  bride — invalid   274 

BROKERS— 

sale  by — evidence   of   memorandum 87 

acting  without  license — effect 198 

making  waging  contracts — validity 251 

of  marriage  contracts 275 

BUCKET  SHOP— 

dealing  in  commodities — contracts  are  illegal 162 

BUILDERS — See  Building  Contracts. 

must  perform  their  contracts  in  substantial  performance 640 

provision  in  contract  for  arbiter 642 

arbitration  clause  643 

the  arbiter's  decision  must  be  pertinent 644 

fraud  of  arbiter 045 

877 


UiTDEX. 

BUILDERS — (continued)  Sec. 

dispensing  with  the  production  of  the  architect'c  certificate 646 

time  of  performance    647 

waiver  of   time   of   performance 648 

BUILDING  AND  LOAN  ASSOCIATIONS— 

definition  of  219 

when  exempt  from  usury  laws 219 

must  keep  within  the  statute 220 

when  transactions  are  usurious 219,  220 

BUILDING  CONTRACTS— See  Buildees. 

owner    preventing    performance 660 

matters  excusing  delay  661 

breach  of — what  is  662 

owner  of  building  promising  to  pay  seller  of  materials — effect. .  . .   663 

risks  during  performance   665 

part  performance  of 666 

requisites  of    668 

when  will  a  court  of  equity  decree  specific  performance 668 

slight  defects — damages    699 

BURDEN  OF  PROOF— 

upon  whom   429 

BURIAI^- 

of  the  dead — implied  contract  to  pay  expenses 485 

BY-BIDDING — 

at  sales — effect  on  purchase  165 

when  legal    168 

BY-LAWS— 

control  payment  to  beneficiary  in  benefit  association |  269 

CAPACITY  TO  CONTRACT— 

of  parties  of  deranged  mind 6 

lucid  intervals 6 

CAPACITY  TO  MARRY— 

of  insane  person   13 

CERTIFICATE— 

must  be  taken  out  by  teacher,  to  draw  his  salary 201 

of  tax  sale — retrospective  act 557 

of  architect — effect    646 

CESTUI  QUE  TRUST— 

when  he  may  sue 364 

when  suit  must  be  brought  in  the  name  of  the  trustee 364 

CHANCERY— 

filing  a  bill  in,  takes  the  contract  out  of  the  statute  of  frauds. ...      85 

CHARTERS— See  Franchises. 

reservation  in   2 

when  may  be  introduced  as  evidence  as  to  a  valid  sale  of  chattels.    .256 
rights    of    grantee 534 

878 


INDEX. 

CHARTERS—  ( con  tinned )  Sec. 

exclusive  franchise 535 

State  regulations  of  corporations   536 

subsequent  acts  regulating  railroad  companies 537 

establishing  maximum  rates  538 

legislature  must  not  destroy  a  business  by  establishing  maximum 

rates   539 

private  contracts  540 

reservation  in  charter   541 

CHATTEL  MORTGAGES— 

lien  follows  the  property 402 

danger  clause  cannot  be  changed  by  subsequent  act 562 

CHATTELS— 

wrongfully  obtained — rights  of  true  owner 505 

CHECKS— 

verification  of  pass-book  by  clerk — duty  of  principal 428 

how  considered  in  the  hands  of  an  innocent  holder 505 

CHILD  LABOR  LAW— See  Infants. 

violation — employment  of  minors   203 

CHOSES  IN  ACTION— 

rights  of  assignee   508 

when  assigned — action  brought  in  assignee's  name 527 

CITIES— 

liability  for  negligence  of  water  company 349 

assignment  by  city  of  water  contract 350 

CIVIL  RIGHTS  CASES— 

ticket  to  public  entertainment — rights  of  vendee  of  ticket — Ameri- 
can doctrine   509 

COAL  STRIKE  COMMISSION— 

result  of — decision    338 

COIN— 

gold  clause  in  contracts — efiect 529 

COLLATERAL  PROMISE— 

comes  under  the  statute  of  frauds 121 

COMBINATIONS— See  Industrial  Combinations. 

of  quasi-corporations  to  stifle  competition 305 

operation  of 320 

to  suppress  competition 320 

in  restraint  of  trade,  general  or  partial 321 

may  be  legal  when  not  a  monopoly 322 

corporate  trusts   323 

trusts  formed  in  Ohio  and  in  New  York — legality 324 

Standard  Oil  Company — authority  to  do  business 324 

Sugar  Refining  Co.  of  New  York — right  to  do  business 324 

pooling  railroad  business    324 

rebates  to  shippers   325 

879 


INDEX. 

COMBINATIONS— (co«<in«ed!)  Sec. 

monopoly  in  interstate  and  international  trade 326 

corporate  trusts  and  labor 327 

trades  unions  are  lawful   334 

of  laborers  for  self-protection   335 

COMMISSION — See  Commission  and  Discount. 

collection  by  nonlicensed  broker 198 

taking  interest  and  commissions 198 

when  usury  210 

to  agent  for  loaning  principal's  money — usury 211 

COMMISSION  AND  DISCOUNT— See  Discoitnt;    Commission, 

when  taken — amounting  to  usury 228 

agent  taking  commission  228 

COMMON  CARRIERS— 

designation  of,  by  vendee — delivery ." 152 

through  tickets — when  interstate  commerce 182 

a  physician  does  not  come  under  the  rules  of 200 

limiting  liability  for  negligence 288 

limiting  liability  for  carelessness 288 

limiting  liability  beyond  their  own  lines 290 

limiting  liability  as  to  losses  not  from  their  own  negligence 291 

Issuing  tickets  with  coupons 294 

liability  as  to  free  passes 295 

whether  telegraph  companies  are 296 

limiting  liability  for  their  own  negligence 299 

contract  of  carriage 303 

buying  a  competing  line  to  suppress  competition 304 

discrimination  by   306 

rights  to  regulate  the  carriage  of  goods  and  passengers 320 

rebates  to  shippers — efl'ect  325 

stipulation  exempting  from  negligence — interstate  commerce 410 

interstate  contracts  of  affreightment 421 

limitation  of  contract 421 

implied  contract  to  send  baggage  on  same  train  with  passenger. . .   424 

regulation  of,  by  the  State 536,  537,  538,  539 

in  interstate  and  foreign  commerce — regulation  of 550 

excused  by  act  of  God  or  public  enemy 582 

when  liable  for  act  of  God 583 

duty  to  deliver  goods 615 

liability  for  acts  of  God 615,  616 

shipment  of  live  stock 617 

breach  of  contract  to  deliver  goods — damages 684 

COMPOSITION  AGREEMENT— See  Insolvency. 

with  creditors  of  insolvent 171 

when  void   171 

secret  preferences    172 

880 


INDEX. 

COMPOSITION  AGREEMENT— (conftJiwed)  Sec. 

what  is   700 

preference  to  separate  creditors 701 

with  part  of  the  creditors 702 

adjustment  and  compromise 703 

conditional  sale — validity  of,  in  bankruptcy 704 

COMPOUNDING — 

of  felony — duress    500 

COMPOUND  INTEREST— See  Interest. 

when  usurious   222 

statutory  provisions 223 

compounding  of  interest — usury   226 

COMPROMISE— 

of  infant  is  voidable 27 

in  settling  mutual  accounts 454 

with  creditors — insolvent  debtor 703 

CONDITIONAL  SALES— 

validity  of  in  bankruptcy 704 

CONDITIONS— 

precedent — performance  of  contract 570 

matters  excusing  nonperformance  of  contract 656 

implied  as  to  contingent  impossibility  of  performance 657 

implied  conditions  of  contracts 658 

when  implied,  as  to  contracts 659 

contracts  subject  to  performance 680 

CONDUCTOR— 

duty  to  passenger   293 

CONFLICT  OF  LAWS— 

lex  loci  celebrationis  governs  the  interpretation  of  contract 115 

as  to  the  statute  of  frauds 116 

as  to  the  sale  of  intoxicants 205 

usury — place  of  payment  of  interest 240 

law  of  another  State  must  be  pleaded 243 

law  of  place — gambling  contracts 258 

what  law  governs   395 

rule  of  construction  of  laws  and  contracts 533 

what  law  governs — Suits  against  which  the  statute  of  limitations 
has  run   638 

CONSERVATOR— 

of  insane  person — contracts   10 

CONSIDERATION— 

return  of — avoidance  of  contract  by  insane  person 23 

tort  of  infant  as,  for  note 34 

return  of — when  infant  avoids  contract 63,  64 

as  set  forth — statute  of  frauds 93 

"for  value  received"  94 

881 


INDEX. 

CONSIDERATION—  { continued )  Sec, 

seal   imports   a   consideration , , , , 95 

expressed  in  guaranty 96 

original — not  within  the  statute  of  frauds 121 

to  bind  third  person  under  the  statute  of  frauds 122 

to  support  contract  to  pay  debt  of  another 128 

substituting  one  debt  for  another — whether  within  the  statute  of 

frauds    130 

of  agreement  of  composition 171 

of  contract,  partly  bad  and  partly  good 204 

taking  bonus  for  loan — usury 216 

of  note — innocent  holder 257 

payable  in  gold  coin 278 

free  passes — collateral  consideration  besides 295 

to  pay  railroad  company  a  sum  for  locating  station 302 

promise  to  name  child 352 

must  be  more  than  a  mere  promise 354 

whether  third  party  can  sue  on  contract  made  in  his  favor 356 

party  buying  business — to  pay  debts — liability 358 

want  of — recovering  back  money  paid 448 

failure  of — party  causing — rights  of 448 

&  iailure  of  by  act  of  God 586 

"%^.  failure  of — recovering  back   595 

>^,:  recovering  back  after  rescission  of  contract 599 

^  J*     composition  with  creditors  700 

C'GtJ^^SIGNOR  AND  CONSIGNEE— 

"consignor  drawing  on  consignee — rights  of  parties 511 

CONSPIRACY— 

to  i"aise  price  of  stock — illegal  contracts — 163 

to  stifle  competition  at  auction  sales — effect 165 

English  doctrine 166 

CONSTRUCTION— See  Interpretation. 

CONTRACTS— 

of  insane  persons 9 

of  lunatics,  after  inquisition  found 12 

avoidance  of  by  insane  person 23 

of  insane  persons — relief  in  equity 25 

of  infants  are  void,  voidable  or  valid 26 

of  infants — when  void   28 

of    infants — when    valid 30 

of  infants  required  by  law  are  valid 35 

of  infants  when  shopping — validity  of 38 

of  infant  for  necessaries  are  valid 39 

of  infant  for  repairs  on  his  real  estate,  voidable 42 

of  infants — necessity  of  ratification 51 

when  ratified  valid  ah  initio 51 

882 


INDEX. 

CONTRACTS—  ( continued )  Sec. 

of  infants — how  ratified   52 

what  is  ratification   ' 53 

of  infants  what  is  a  ratification 53 

ratification  on  condition  54 

time  to  ratify   55 

silence  as  a  ratification 56 

of  infants — avoidance  of 57,58 

between  infants — avoidance  57 

as  to  personalty — when  may  be  avoided  by  infant 58 

as  to  realty,  by  infant,  when  avoided 58 

of  partnership  by  infant — his  liability 60 

of  infants  for  service   62 

beneficial  to  infants — avoidance  of 63 

of  infants — who  may  avoid 66 

created  by  law — not  within  the  statute  of  frauds 79 

executed,  not  within  the  statute  of  frauds 80 

executed  on  one  side,  not  within  the  statute  of  frauds 82 

what  law  governs 115 

of  indemnity — whether  within  the  statute  of  frauds 129 

abandoning    work — owner    of    work    agreeing    to    pay    workmen 

whether  within  the  statute  of  frauds 132 

within  the  statute  of  frauds 137 

not  within  the  statute  of  frauds,  as  to  time 138 

application  of  the  17th  section  of  the  statute  of  frauds 138 

executed  and  executory,  governed  by  the  statute  of  frauds 139 

of  work  and  labor — when  within  the  statute  of  frauds 146 

to  defraud  are  void 162 

to  buy  stock  at  a  fictitious  premium. — effect 163 

to  publish  libel  is  illegal 164 

to  prevent  competition  at  sales,  are  illegal 165 

not  to  bid  at  auction  sales — eii'ect 167 

made  in  violation  of  law 173 

of  peonage — effect   174 

prohibition  and  penalty 175 

malum  in  se — illegal  .  .    . 176 

malum  prohibitum — rvalidity 176 

against  statute — penalty 178 

prohibited  by  law  179 

made  on  Sunday  at  common  law 180 

Sunday  contracts — PJnglish  laws   180 

to  be  performed  within  and  without  the  statute — when  interstate 

commerce 182 

made  on  Sunday — prohibition    183 

no  prohibition   184 

negotiated  on  Sunday — completed  on  Monday — effect 185 

883 


INDEX. 

COIHTRACTS— (continued)  Sec. 

within  the  prohibition  of  Sunday  contracts 186 

void — made  on  Sunday — ratification 19? 

made  on  Sunday — rights  of  innocent  third  parties 193 

dated  on  Sunday — effect 194 

made  on  Sunday — executed  and  executory 195 

prohibited  by  statute 196 

of  sale  of  prohibited  articles 202 

void  in  part  and  valid  in  part 204 

action  on — partly  good,   partly  bad 204 

hiring  or  renting  of  securities,  when  usury 218 

having  an  independent  existence — not  usury 235 

wagers — validity  in  England 245 

wagers — validity  in  the  United  States 246 

statutory  provisions  as  to  wagering  contracts 247 

on  option — futures — margins   249 

corners    in    grain 250 

character  of — designated  by  the  parties 252 

options,  M'hen  valid 254 

selling  commodities  not  in  existence 255 

as  controlled  by  public  policy 274 

to  furnish  party  to  marry 275 

stipulation  that  false  representation  shall  not  avoid 276 

for  the  welfare  of  children 277 

payable  in  gold  coin 278 

influencing  appointment  to  office 280 

by  newspaper  to  advance  the  interest  of  a  candidate 280 

compensation  to  officer  by  private  person 281 

to  control  the  regular  administration  of  justice 282 

to  procure  legislation 284 

to  use  improper  influence — illegal 286 

for  securing  a  pardon 287 

special  contract  of  railroad  company  to  haul  circus  cars 288 

express  contract  by  express  company  limiting  its  liability 289 

limiting  liability  of  master 299 

of  private  of  quasi  corporations — validity 301 

locating  right  of  way 302 

locating  railroad  stations   302 

to  suppress  competition 304 

made  by  corporations  giving  exclusive  privileges 308 

in  restraint  of  trade — validity 309 

of  combinations — when  reasonable 309 

in  restraint  of  trade — reasonableness 310 

in  restraint  of  trade — English  doctrine 311 

American  doctrine  in  restraint  of  trade 312 

construction  of  in  retraint  of  trade 316 

884 


INDEX. 

CONTRACTS— (confimted)  Sec. 

(dealing  with  exclusive  persons 316 

sale  of  secret  process 316 

sale  of  good-will  of  business 316 

of  monopoly  in  restraint  of  trade 320 

legal — combinations  of  corporations   322 

rebates  to  shippers — effect   325 

combinations  to  restrict  the  right  to  contract — legality 334 

persons  affected 339 

privity  of — who  affected   339 

meeting  of  minds — right  of  privacy 340 

where  there  is  no  privity  of  parties 340 

as  to  boycotts  341 

duty  not  to  interfere 342 

privity  of  party — stranger's  rights 348 

for  the  benefit  of  third  parties 352 

assumption  of  mortgage  debt — right  of  mortgagee  to  sue 353 

must  be  something  more  than  a  mere  promise 354 

acceptance  by  third  person 355 

for  the  benefit  of  third  persons — modification  of  the  rule 356 

exceptions  to  the  modified  rule 357 

party  to  the  consideration — trust 358 

promise  as  to  agent 359 

English  doctrine   360 

next-of-kin — right  to  sue 361 

covenants   362 

covenants — another  rule   368 

who  may  bring  suit  on  simple  contract 364 

description  of  the  debt 365 

agreement  to  save  harmless 366 

many  promisors — siiit  against 367 

oral  merged  in  special — effect 370 

when  several  382 

joint  subscribers   383 

joint  and  several  386 

release  of  several  and  joint  promisors  by  law 387 

capacity  of  parties  ' 397 

validity — how  determined   408 

as  to  the  payment  of  interest — law  of  another  State 417 

agreement  as  to  what  law  shall  govern 420 

impairing  the  obligation  of — dismissal  of  public  ofiice 426 

no  implied  contract  between  parties  making  an  express  contract. .  442 

when  void,  are  a  nullity 443 

difference  between  express  and  implied 444 

implied — when  receiving  money  which  belongs  to  another 445 

a  party  may  contract  with  whom  he  pleases  in  express  contract.  .  .  457 

885 


INDEX. 

CONTRACTS—  ( continued )  Sec, 

when  private  cannot  be  regulated  by  the  legislature 540 

law  enters  into  when  made 555 

nature  of   568 

subsequently  arising — performance 575 

in  commercial  transactions  574 

bailment  of  article  to  be  repaired 575 

executory  contracts  can  only  be  rescinded 593 

CONTRACTUAL  RELATIONS— 

persons  aflected 339 

meeting  of  minds — right  of  privacy 340 

master  and  servant — interference  of  third  parties — boycott 341 

duty  not  to  interfere  in  any  contract 342 

restricting  the  rule  to  servants 343 

when  the  period  of  employment  is  not  certain 344 

doing  an  act  which  is  legal  within  itself 345 

fraudulent  representations   346 

to  sustain  an  action  the  discharge  must  take  place 347 

as  to  priorities  of  the  parties 348 

water  companies — rights  of  third  parties 349 

assignment  of  city  contract 350 

no  priorities  of  parties  or  of  consideration 351 

CONTRIBUTION— 

principle  of  388 

when  surety  may  claim 388 

payment  by  surety — in  what  property 389 

right  to  receive  390 

by  joint  wrongdoers   394 

in  cases  of  indemnity 394 

among  sureties r 434 

right  to  have 436 

relation  of  parties  43& 

among  wrongdoers    437 

among  wrongdoers — exceptions  to  general  rule 438 

CONVERSION— 

of  property — waiving  tort 488,  489 

CONVEYANCES— 

of  land —  specific  performance 667 

of  land — failure  of — ^liquidated  damages 671 

CORNERS— 

in  grain,  on  board  of  trade — validity 250 

combination  of  parties  to  advance  price  of  grain 250 

market  price — what  is 250 

CORPORATE  TRUSTS— 

industrial  and  commercial  combinations 323 

pooling  railroad  business 324 

886 


CORPORATE  TRUSTS— (continued)  See. 

rebates  to  shippers  325 

monopoly  in  interstate  and  international  trade 326 

as  to  labor   327 

antagonism  to  labor  327 

sngar  trust  agreement,  for  protection  of  corporations  against  labor  327 

CORPORATIONS— 

private  contract  of  quasi  corporation 301 

locating  right  of  way  and  stations  of  railroads 302 

use  of  franchises 303 

combination  of  quasi  corporations  to  stifle  competition 305 

telegraph  and  telephone  companies  must  not  discriminate 307 

giving  exclusive  privileges • 308 

right  to  create  a  monopoly 320 

restraint  of  trade — general  or  partial 321 

legal  combination  of 323 

forming  trusts 323 

pooling  of  railroad  business 324 

rebates  to  shippers 325 

monopoly  in  interstate  and  international  trade 326 

corporate  trusts  and  labor 327 

what  law  governs  interstate  contracts 395 

member  of — paying  corporate  debt 432 

making  voluntary  payment — effect 449 

must  fulfil  implied  contracts 459 

liability  to  promoters   463 

having  money  misappropriated  by  treasurer — rights  of 503 

collection  of  debts  in  a  State  where  they  have  no  situs 532 

as  grantee  from  State 534 

when  exclusive  franchises  are  given 535 

exclusive  franchises   535 

regulated  by  the  State 536 

State  regulation  of 636 

subsequent  acts  regulating  railroad  companies 537 

State  establishing  maximum  rates 538 

legislature  must  not  destroy  a  business  by  establishing  maximiun 

rates 539 

private  contracts 540 

reservation    in    charter 541 

as  to  the  running  of  the  statute  of  limitations 630 

enforcing  contracts  against 668 

COPYRIGHT— 

publisher  trying  to  create  an  infringement  by  reservation 339 

COUNTER-CLAIM— 

Betting  up — waiver  of  tort 490 


887 


INDEX. 

COUPONS—  Seo. 

given  as  interest  notes — drawing  interest — not  usury 222 

interest  coupons — not  usurious   224 

when  negotiable  509 

COUPON  TICKETS— 

of  carriers — riglits  of  connecting  lines 294 

COVENANTS— 

of  infant  to  carry  money  are  voidable 27 

for  use  and  occupation  are  valid Ill 

limited  as  to  space — restraint  of  trade — English  doctrine 311 

as  to  limitation  of  time  and  space 312 

test  of  reasonableness  as  to  restraint  of  trade 313 

the  latest  statement  as  to  reasonableness  in  the  restraint  of  trade.   314 

to  benefit  a  third  person 362 

another  rule 363 

to  save  harmless — who  can  bring  suit 366 

not  to  sue — effect  376 

when  pleadable   376 

or  debt  will  lie  for  action  on  sealed  instrument 442 

part  performance  of  void  contract 479 

of  warranty  of  assignment  of  expectancies 520 

excused  by  act  of  law 578 

COVERTURE— 

disability  of,  concurring  with  the  privilege  of  infancy — when  deed 
may  be  affirmed 32 

CRIMES— 

committed  by  the  beneficiary  in  life  insurance — effect 545 

DAMAGES— 

for  property  destroyed — promise  to  pay  by  third  person  must  be  in 

writing    122 

measure  of,  for  trees  and  stone  taken  from  another's  land 492 

recoverable  for  rescission  of  contract 610 

object  in  awarding 682 

rule  for  estimating  for  breach 683 

common  carrier's  breach  684 

sale  of  property  for  special  purposes — breach  of  contract 685 

breach  of  contract  for  personal  services 686 

contract  not  for  the  use  of  some  special  instrumentality 687 

part  performance 688 

appreciation  in  the  value  of  land 689 

contracts  and  contingent  damages 690 

interest   upon   unliquidated 691 

breach  by  telegraph  company 692 

breach  by  telegraph  company — mental  suflering 693 

contract  to  furnish  special  material — breach  of 694 

profits  as  damages — general  rule 695 

888 


INDEX. 

DAMAGES—  ( continued )  Sec. 

profits  which  would  have  been  realized 698 

contingent  profits  not  allowed 697 

resale  by  purchaser 698 

building  contracts — breach  of 699 

DATE— 

of  contract  made  on  Sunday — dated  on  Monday — effect 185 

validity  of  contract — delivery 185 

note  dated  on  Sunday — executed  on  another  day — efl'ect 194 

antedating  note — interest  payable  in  advance,  when  usury 217 

DEATH— 

of  ancestor — running  of  the  statute  of  limitations 631 

DEBT. 

or  covenant  will  lie  for  action  on  sealed  instrument 442 

DEBTOR  AND  CREDITOR— 

a  creditor  cannot  disaffirm  an  infant  debtor's  sale 66 

collateral  promise  to  pay  debt  of  debtor — within  the  statute  of 

frauds    121 

liability  of  person  to  pay  debt  of  another — five  essentials 122 

to  whom  promise  to  pay  debt  of  another  must  be  made 123 

promise  to  pay  debt  of  another  promisor  benefited 125 

release  of  original  debtor — novation — whether  within  the  statute 

of  frauds 130 

assignment  for  benefit  of  creditors 170 

secret  preferences   in   insolvency — partieeps   criminis 172 

limiting  amount  of  debt  in  the  insurance  policy 268 

fraud  in  account  stated — effect 427 

depositor   in  bank — relation   to   bank 428 

third  voluntarily  paying  creditor  who  accepts  payment — effect.  .  430 

voluntary  payment  of  another   430 

when  law  creates  an  agreement  to  pay  the  debts  of  another 431 

payment  of  debt  of  another — obligation 431 

payment  of  debt  of  another — no  assumpsit  is  raised 432 

absence  of  debtor  from  State — running  of  the  statute  of  limita- 
tions    632 

absence  of  the  creditor  from  the  State — running  of  the  statute  of 

limitations 633 

composition   with    creditors 700 

preferring   separate   creditors 701 

composition  with  part  of  the  creditors 702 

DECEIT— 

of  infant — liability  of 67,  68 

DECREE— 

not  binding  on  infant  in  ventre  sa  mere 37 


889 


IKDEX. 

DEED —  Sec. 

of  lunatic,  feoflFment 9 

of  insane  person,  how  ratified 21 

of  insane  person — affirmance  or  avoidance  of 21 

of  insane  man  cannot  be  set  aside  by  a  stranger 25 

of  infant  is  voidable 27 

of  trust  by  infant — how  ratified 53 

of  infant  transmits  title 57 

of  minor — how  avoided 57 

of  infant,  how  aflSrmed 65 

when  decreed — part  performance 107 

release  must  be  by  deed 379 

what  law  governs 403 

DEFALCATION— 

money  misapplied — rights   of   third  persons 503 

DEFENSE— 

oral  sale  of  land  set  aside 112 

waiver  of  the  statute  of  frauds 114 

DEFINITION— 

of    necessaries    for    infant 39,     40 

DEL  CREDERE— 

delinition  of 87 

DELIVERY — See  Delivery  and  Acceptance. 

of  note  or  memorandum  of  contracts  in  writing 84 

of  possession,  covipled  with  making  valuable  improvements,  or  the 

payment  of  the  purchase  price,  is  part  performance 102 

of  land — parol  gift — effect 106 

of  property  in  possession  of  third  party 150 

designation  of  carrier   by  vendee 152 

of  instrument  made  on  Sunday,  delivery  on  Monday — effect 185 

of  note  dated  on  Sunday,  on  secular  day — effect 194 

of  insurance  policy,  completes  contract 404 

is  essential  to  a  gift 425 

of  bill  of  lading — effect 511 

of  warehouse  receipt — effect  on  the  property  represented 513 

contract  to  deliver  gold  coin 529 

by  vendor — executed  sale  cannot  be  rescinded 593 

DELIVERY  AND  ACCEPTANCE— See  Delivery. 

of  goods — within  the  statute  of  frauds 145 

may  not  be  at  the  same  time 145 

DE  LUNATICO  INQUIRENDO— 

writ   of — contract   of   lunatic 12 

DEPOSITARY— 

holding  stolen  money  with  notice 502 


890 


INDEX. 

DEPOSITOR—  Sec. 

in  bank — duty  to  examine  pass-book 428 

over-paid — recovering    back    money 450 

DESCRIPTION— 

of  parties,  in  memorandum  of  sale 88 

of  subject-matter  in  memorandum  under  statute  of  frauds.  .  .  .91,  92 

of  the  debt — benefit  of  third  person 365 

DEVISE— 

parol  promise  to  devise — within  the  statute  of  frauds 108 

oral  agreement  to  devise  property 465 

oral  agreement — enforced  in  equity 466 

agreement  to  devise  to  a  certain  person — effect 667 

DISAFFIRMANCE— See  Avoidance. 

DISCHARGE — See  Breach  and  Discharge. 

of  laborer  in  bankruptcy — effect  on  future  wages  assigned.  .  .  .515,  516 

DISCOUNT — See  Commission;  Commission  and  Discount. 

on    accommodation    paper — usury 212 

accommodation  paper  in  hands  of  innocent  party — usury 212 

DISCRIMINATIONS— 

suppression   of   competition 304 

combination  of  quasi-public   corporations 305 

by  common  carriers 306 

by  telegraph  and  telephone  companies 307 

giving  exclusive  privileges 308 

in  favor  of  agriculture  products — restraint  of  trade 321 

by  railroads — rebates  to   shippers 325 

against  business  men 335 

aginst   imported  goods 551 

DISSOLUTION— 

of  partnership  by  bankruptcy,  death  or  lunacy  of  partner 15 

of   partnership — rights   of   partners 431,  433 

DISTRESS— 

of  goods — released  by  third  party 435 

for   rent — when   may   be   abolished 560 

DIVORCE— 

is  a  proceeding  in  quasi  in  rem 400 

liability  of  father  for  necessaries  of  children 470 

DOCTOR— See  Physician. 

DOMICII^- 

of  party  seeking  divorce 400 

of  owner  of  personalty  governs 407 

of  debtor — absence  from  State — running  of  the  statute  of  limi- 
tations     632 

DRAFTS— 

drawn  by  consignor — rights  of  parties 511 

third  party  taking  bill  of  lading 511 

891 


INDEX. 

DURESS—  Sec. 

payment  under — eflFect 452 

payment    under 455 

making  arrest 455 

money  obtained  under — recovery 496 

of  goods — right  of   injured   party 497 

by  imprisonment — legel  or  illegal 498 

threats  of  imprisonment 499 

EARNEST  AND  PART  PAYMENT— 

distinguished  under  the  statute  of  frauds 153 

when  part  payment  must  be  made 154 

what  constitutes  part  payment 155 

in  what  property  part  payment  can  be  made 158 

EDUCATION— 

as  a  necessary  for  infant 41 

whether  a  necessary  to  infant 43 

EIGHT-HOUR  LAW— 

is  it  class  legislation 4 

under   the  police  power 4 

legality  of 4 

ELECTION— 

waiving  tort  and  suing  in  assiimpsit 487 

doctrine  that  the  property  must  be  sold 488 

bets  on  election — rights  of  stakeholder 502 

EMANCIPATION— 

of  infant — rights  of   29 

illegality  of  cannot  be  set  up  by  strangers 29 

of  infant  by  marriage  29 

of  child  by  father— effect 470 

EMPLOYER  AND  EMPLOYE— 

under  the  truck  system  2 

putting  child  to  do  prohibited  labor — effect 203 

unfair  firms,  listed  by  unions 335 

picketing   by  employe 336 

employer  may  list  strikers  337 

boycotts  by  employe 341 

malicious  interference  between,  by  third  party 343 

when  the  period  is  not  certain — malicious  interference 344 

employer  agreeing  to  protect  employe  from  strikers 348 

employe  recovering  for  extra  services 462 

effect  of  contract  of  employe  not  to  marry 474 

default  to  complete  service   474,  475 

substantial  performance  of  contract — effect 477 

right  of  employe  to  assign  unearned  wages 515 

partial  indebtedness  cannot  be  assigned  621 

892 


INDEX. 

EMPLOYER  AND  EMPJjOYE— { continued)  Sec. 

effect  of  statute  compelling  employers  to  give  reason  for  discharge 

of  employes    537 

regulating  hours  of  work  of  women  and  minors 544 

death  of  employer — effect  on  contract 592 

wrongful  discharge  of  employe 602 

constructive   service   603 

service  to  be  performed  in  the  future 604 

duty  of  employe  to  seek  other  work 605 

offer  to  render   service 606 

mode  of  rescission  by  employer  607 

employing  another  to  work  on  personalty 608 

employing  another  to  affix  machine  to  realty 609 

damages  recoverable 610 

after  notice  of  rescission — duty  of  the  employe 611 

contract  of  hiring — employe  guarantees  satisfaction 614 

cause  for  discharge  of  servant 614 

hiring  contracts — implication  of  discharge  618 

reservation  of  wages  payable  at  certain  intervals 619 

extra  services   620 

contract  of  hiring — as  to  statute  of  limitations 628 

to  perform  work  and  furnish  materials 639 

substantial  performance — ^good  faith   640 

time  of  perfomance 641 

meaning  of  satisfaction  in  doing  work  as  to  the  employer 653 

EMPLOYMENT  BUREAU— 

run  by  the  State — boycott  illegal 341 

ENGINEER— 

as  arbiter  in  building  contracts 643 

fraud  of — as  arbitei- — effect  646 

ENLISTMENT— 

of  infant  in  the  army,  when  valid 36 

ENTRANCE  FEE— 

to  enter  horse  racing  contest,  whether  gambling 263 

ESTOPPEL— 

of  infant  by  his  deceit,  misrepresentation  as  to  age 67 

of  infant  in  equity   70 

fraud  in  contract — cannot  be  set  up 276 

EVIDENCE— 

parol  evidence  cannot  vary  written  contract 81 

to  take  the  contract  out  of  the  statute  of  frauds 86 

to  identify  parties  to  memorandum 89 

parol,  to  apply  the  description  to  the  parties  in  memorandum ....      89 

to  identify  agent  or  principal 90 

to  place  liability  for  sales 126 

of  acceptance    151 

893 


IITD'EX. 

EVIDENCE—  ( continued )  Sec. 

parol  evidence  cannot  vary  representations  in  writing 160 

of  usury — when  sufficient 236 

of  usury — burden  of  proof  of  usury 239 

to  show  valid  sale  of  articles 256 

of  acceptance  of  benefits 458 

partial  payment  as  evidence  of  acceptance  of  work 652 

EXCHANGE — See  Premiums  and  Exchange. 

of  property  by  insane  person — mental  capacity 21 

of  property  by  infant  is  voidable 27 

EXCURSION  TICKET— 

limiting  liability  of  common  carrier 291 

EXECUTION  AND  LEVY— 

by  creditor  on  joint  debtors 370 

EXECUTIONS— 

selling  property  under  limiting  amount 565 

EXECUTOR  AND  ADMINISTRATOR— See  Administrator. 

contracts  under  the  statute  of  frauds 117,  118 

forbearance — statute  of  frauds   119 

special  promise   120 

EXEMPTIONS— 

of  married  debtor  cannot  be  waived 515 

laws  of,  may  be  changed 558 

EXPECTANCIES— 

may  be  assigned 518,  520 

mere  possibility  cannot  be  assigned 518 

EXPENSES— 

taking  legal  rate  of  interest  and  adding  expenses — when  usury.  .  .   227 

EXPRESS  COMPANIES— 

liability  as  to  their  own  negligence 289 

notice  regulating  amoimt  of  money  carried 289 

failure  to  deliver  goods — mental  suffering  as  damages 693 

FEES — See  Attorney's  Fees;    Entrance  Fees. 

established  by  ordinance  cannot  be  excessive 198 

of  attorney — paying  by  borrower — whether  usury 229 

FELONY- 

compounding  of — duress    500 

money  stolen  and  paid  on  debts  cannot  be  reclaimed  by  true  owner  504 

FEME  SOLE— 

contracts  of,  for  services — not  to  marry 474 

FEOFFMENT— 

of  lunatics — ^voidable 9 

deed  of  insane  person  equivalent  to 21 

FERTILIZERS— 

sellina:  without  a  license — effect 202 


894 


INDEX. 

FOEBEARANCE—  Sec. 

of  executor  to  collect — must  it  be  in  writing 119 

to  collect  debt — usurious  agreement 206 

FORECLOSURE— 

of  mortgage — paying  attorney's  fees — whether  usury 229 

interest  on  debt — how   computed 242 

interest  must  not  be  compoimded 242 

of  real  estate  mortgage — what  law  governs 403 

extending  time  of  redemption   566 

FOREIGiS"  INSURANCE— 

policy — what  law  governs  404 

FORGERY— 

of  check — examination  of  pass-book  by  clerk  who  made  the  for- 
gery— liability  of  principal    428 

FOURTEENTH  AMENDMENT— 

object  of   1 

FRANCHISES— See  Charters. 

use  by  corporation   303 

will  be  strictly  construed   534 

must  be  created  by  express  grant 534 

when  exclusive   535 

FRAUDS — See  Frauds,  Statute  of. 

of  infant  in  contracting — effect 57 

of  infant,  as  to  age,  liability  of 67,  68 

infant  responsible  for    69 

bucket  shop  dealings   162 

in  assignments  for  benefit  of  creditors 170 

composition  agreements  with  creditors   171 

in  secret  preferences  of  assignor — insolvency 172 

in  an  account  stated  427 

in  writing  up  pass-book — effect 428 

in  an  account  stated — effect   429 

liability  of  party  guilty  of 440 

money  fraudulently  obtained — implied  contract 440 

receiving  benefit  of 503 

receiving  stolen  money  to  pay  debts — rights  of  owner 504 

of  principal — liability  of  surety — statute  of  limitations 635 

the  arbiter  must  act  in  good  faith  for  his  decision  to  be  bind- 
ing      645,  646 

in  composition  agreement  with  creditors — effect 701 

FRAUDS,  STATUTE  OF— 

waiving  of  contract  by  parol — English  doctrine  as  to  labor 648 

waiving  written  contract  to  work  by  parol — American  doctrine.  .  .   648 
contract  to  furnish  special  material 694 

FREE  PASSES— 

of  common  carriers — liability  on 295 

S95 


INDEX. 

FUNERAL  EXPENSES—  Sec. 

implied  contract  to  pay 485 

FUTURES— 

dealing  in — when  valid   248 

intent — deal  in  futures   254 

when  sale  of — when  valid 413 

not  gaming  contracts 413 

GAMBLING  CONTRACTS— 

law  of  the  place — gambling  contracts 258 

recovering  back  money  lost  i 269 

constitutionality  of  statute  to  recover  back  money  lost  in  wagering 

contracts    260 

action  to  recover  back  money  lost  in  gambling  contract 261 

oflfering  a  reward  or  premium , 262 

entrance  fee — competitions  at  horse  racing 263 

bookmaking  and  pool  selling 264 

difference  between  wager  and  premium  or  award 265 

GAMING — 

note  given  for — another  State  law 413 

a  future  delivery  of  commodity 413 

rights    of    stakeholder , 502 

GARNISHMENT— 

of  wages  already  assigned 515 

GIFT  ENTERPRISES— 

giving  trading  stamps  is  not 270 

GIFTS— 

of  infant  are  voidable 27 

executed  by  infant — avoidance 66 

parol — not  taken  out  of  the  statute  of  frauds 102 

parol — of  real  estate — when  enforceable 106 

gratuitous  distribution  of  property  is  not  a  lottery 271 

effect  of  statute  regulating 271 

no  implied  contract  to  revoke , 425 

GOLD  COIN— 

as  consideration  of  contract 278 

GOODWILI^— 

of  business — sale  of — restraint  of  trade 319 

sale  of  physician's  practice 319 

sale  of  school — rights  of  vendor 319 

GOODS,  WARES,  AND  MERCHANDISE— 

what  included    144 

GRACE— 

days  of — what  law  governs — interstate 399 

GRAIN  DEALERS— 

combination  to  suppress  competition 320 


896 


INDEX. 

GUARANTOR—  Sec. 

when  the  consideration  is  original — effect — paying  debt  of  another  123 

GUARANTY— 

expressing  consideration  96 

must  be  in  writing 96 

of  note  before  and  after  delivery 96 

employe  guaranteeing  satisfaction 614 

GUARDIAN— 

of  insane  persons — restoration  of  reason — effect  as  to  contracts..  10 

furnishing  necessaries  to  lunatic 11 

and  ward  tenants  in  common — method  of  partition 37 

right  to  contract  for  ward 72,  73 

title  to  ward's  property 74 

personal  liability  of 75 

of    lunatic — rights    of 121 

GUARDIAN  AD  LITEM— 

for  infant  in  partition 37 

GUESSING  CONTEST— 

winner  cannot  recover  money  won 272 

HEIRS— 

assignment  of  expectancies 520 

HOMESTEAD— 

exemption  of — what  law  governs 558 

HORSE  RACING — 

offering  a  reward  or  premium 262 

entrance  fee — competition 263 

HOTELKEEPER— 

contract  with — cannot  be  assigned 519 

HUSBAND  AND  WIFE— 

services — implied  contract   456,  460,  461 

implied  agreement  to  furnish  wife  necessaries. .    468 

wife  aiding  her  husband — tort 495 

ILLEGAL  CONTRACTS— See  Conteacts. 

cannot  be  enforced  161 

agreements  to  defraud  others — bucket  shops 162 

agreement  to  buy  shares  of  stock  at  fictitious  premium 163 

of  libel , 164 

auction  sales — by-bidding  165 

auction  sales — English  doctrine 166 

stipulation  not  to  bid  at  auction  sales 167 

by-bidding — when  legal   168 

the  purchase  of  property  on  joint  account 169 


wagers 


244 


wagers — liability  of    . 245,  246 

when  against  public  policy 274 

sale  of  offices 279 

897 


INDEX. 

ILLEGAL  CONTRACTS—  ( continued )  Sec. 

influencing  appointment  to  office 280 

compensation  in  office  by  private  person 281 

controlling  the  regular  administration  of  justice 282 

assignment  of  unearned   compensation 283 

contracts  to  promote  legislation — lobbying  contracts 284 

compensation  for  professional  services  in  office 285 

use  of  improper  influence 286 

contract  for  securing  a  pardon 287 

to  agree  not  to  contest  a  patent 328 

inforcement  of 330 

test  of  illegality 331 

test  of  331 

legality  of  time  of  enforcement 332 

no  right  of  action  on 447 

loaning  money  447 

ILLEGITIMATES— 

parent  bound  to  upport  as  if  legitimate 33 

IMPAIRMENT  OF  OBLIGATION  OF  CONTRACTS— 

reduction  of  periods  of  limitations 528 

gold  clause  in  contracts ,  529 

salaries  of  public  officers 530 

decisions  under  prior  statutes 531 

retrospective  laws    532 

conflict  of  laws   533 

IMPLIED  CONTRACT— 

of  common  carrier  in  transporting  goods  beyond  its  own  line.  ....   290 

as  to  photographer's  rights  over  photograph 340 

definition  of  423 

as  to  tolls 423 

of  railway  to  send  baggage  on  same  train  with  passenger 424 

as  to  gifts   , 425 

impairing  the  obligation  of  contract 426 

fraud  and  mistake — eff"ect 427 

pass-books — writing  up   428 

burden  of  proof    ( 429 

distinguished  from  express  444 

allegation   in   declaration i 444 

receiving  money  which  belongs  to  another 445 

receiving  property 446 

illegal   contracts    447 

want  of  consideration — recovering  back  money  paid 448 

voluntary  payment  with  knowledge  of  the  facts 449 

payment  under  mistake  of  fact 450 

agent  of  both  seller  and  purchaser — payment  of  commission 451 

mistake  of  law    , 452 

898 


INDEX. 

IMPLIED  CONTRACT— (con^inMed)  Sec. 

mistake  of  law  in  equity 453 

compromise    454 

duress    455 

payment  of  taxes  and  assessments 456 

voluntary  benefits  conferred , 457 

voluntary  acceptance  of  benefits 458 

municipal  corporations    459 

family  relations — benefits  received   460 

services  of  a  supposed  wife 461 

extra   services    462 

corporation's  liability  to  its  promoters , 463 

waiving  tort   464 

oral  agreement  to  bequeath  or  devise  property. 465 

enforcement  in  equity  and  in  law 466 

parol  contracts    467 

necessaries  for  wife   468 

necessaries  for  minor — money  furnished  by  another 469 

father  liable  for  necessaries  for  minor  children 470 

necessaries  for  insane  person 471 

liability  of  insane  person's  estate 472 

part   performance — quantum   meruit 473 

wilful  default — wages    i  474 

default  not  wilful — personal  services , 475 

promise  to  marry 476 

substantial  performance    477 

order  given  by  one  and  filled  by  another 478 

part  performance  under  a  void  contract 479 

under  no  obligation  to  j^erform — part  performance , 480 

failure  to  pay  in  a  manner  agreed  to 481 

part  performance — rescission  of  contract 482 

work  and  labor   483 

physician's   services    484 

burial  of  the  dead 485 

waiving  the  tort  and  suing  on  the  implied  contract 486 

when  waiver  may  be  made 487 

doctrine  that  the  property  must  be  sold — tort 488 

doctrine  that  the  property  need  not  be  converted  into  money — tort.   489 

counter-claim  or  set-off  490 

privity  of  contract   491 

implied  assumpsit  lies  for  trees  and  stones  severed  and  converted.  .   492 

when  wrongd'^er  has  auverse  possession  of  land 493 

right  of  agent  of  injured  party  to  sue  in  assumpsit 494 

several  tort-feasors 495 

duress    496 

duress  of  goods   497 

8ft9 


INDEX. 

IMPLIED  CONTRACT— (con^iwMed)  Sec, 

imprisonment 498 

threats    of    imprisonment 499 

compounding  felony , 500 

voluntary  payment  of  money 501 

as  to  third  parties  with  notice , 502 

receiving  benefits  of  fraud — agency 503 

money  received  in  payment  of  debts 504 

chattels  wrongfully  obtained   , 505 

IMPOSSIBLE  CONTRACTS— 

impossible  of  fulfillment  . 568 

difficulty  and  hardship 569 

condition   precedent 570 

nonexistence  of  subject-matter   571 

subject-matter  ceasing  to  exist ; 572 

impossibility  of  performing  a  contract  subsequently  arising 573 

in  commercial  transactions 574 

bailment  of  an  article  to  be  repaired 575 

excused  by  act  of  law 576 

two  ways   of   performance 577 

judgments  and  other  judicial  processes , 578 

promisee    preventing    performance 579 

implied  condition  as  to  contingent  impossibility  of  performance.  . .  657 

implied  condition  of  contracts 658 

what  implied  conditions  attach  to  a  contract 659 

IMPRISONMENT— 

payment  of  money  to  prevent 498 

money  voluntarily   paid 498 

threat  of 499 

IMPROVEMENTS— 

and  possession  as  part  performance 105,  100 

IMPULSIVE  INSANITY— 

suicide  of  insane  person 17 

INDEMNITOR  AND  INDEMNITEE— 

must  the  agreement  to  indemnify  be  in  writing 129 

INDEMNITY— 

when  must  be  in  writing 96 

whether  within  the  statute  of  frauds 129 

of  bail  by  principal — illegal 129 

when  third  party  can  sue 366 

among  wrongdoers 394 

wrongdoers  cannot  have    439 

for  rescission  of  contract i 608 

INDORSEMENT— 

of  infant  is  voidable 27 

of  note  on  Sunday 186 

900 


INDEX. 

INDUSTRIAL  COMBINATIONS—  Sec 

monopoly — contracts  in  restraint  of  trade 320 

restraint  of  trade — general  or  partial 321 

legal  combinations    322 

corporate  trusts    323 

pooling  railroad  business   , 324 

rebate  to  shippers 325 

monopoly  in  interstate  and  international  trade 326 

corporate  trusts  and  labor 327 

INFAI^TS— 

contracts  of,  are  void,  voidable  or  valid 28 

who  are  at  common  law 26 

majority  reached  by,  in  different  States 26 

privilege  of,  given  for  their  protection 26 

contracts  of — distinction  between  voidable  and  void 27 

became  emancipated  by  marriage 29 

emancipation  of  by  parents — effect 29 

valid  contracts  of   30 

must  support  his  family 30 

may  assign  his  property — when 30 

may  make  a  valid  contract  to  support  his  bastard  child 33 , 

notes  for  torts  of,  are  valid 34 

recognizance  of,  is  valid 35 

enlistment  in  armj" — when  valid 36 

partition  by,  when  legal 37 

validity   of  shopping  contracts 38 

wife  of — her  necessaries  are  also  his 40 

repairs  on  real  estate,  not  a  necessary 42 

going  into  business — necessaries    44 

living  at  home  with  his  father — necessaries 45 

cardinal  tenets  as  to  what  are  necessaries  for  infant 46 

must  support  family   47 

payable  of  their  debts  by  another — effect 49 

method  of  ratifying  contracts 52 

ratification  of  contract  on  condition 54 

silence  as  a  ratification 56 

avoidance  of  contract 57 

when  contracts  for  personalty  may  be  avoided 58 

selling  land — entering  thereon  and  taking  rents  and  profits 57,  58 

what  is  a  reasonable  time  to  avoid  a  contract 59 

how  are  partnership  contracts  avoided 60 

bona  fide  purchaser  from — title  transferred 61 

contracts   of    service — disaffirmance 62 

avoiding  beneficial  contracts    63 

return  of  consideration  by  infant 64 

how  can  they  afiirm  or  disalfirm  their  contracts 64 

901 


INDEX. 

INFANTS—  ( continued )  Sec. 

who  may  avoid  infant's  contracts 65 

estoppel  for  deceit 67 

as  bailee — liability  of   ^ 68 

for  acts  ex  delicto 69 

prohibited  work — validity  of  laws 203 

contracts  for  their  welfare 277 

promise  by  third  party — acceptance 355 

married  husband  must  furnish  necessaries  for  his  wife 468 

necessaries  for 469 

necessaries — implied   contract    469,  470 

regulation  of  hours  of  labor 544 

right  to  specific  performance 669 

INJUNCTION— 

against  unlawful  interferenco  in  the  business  of  others 335 

INNKEEPERS— 

loss  of  goods  by  act  of  God 585 

loss  of  goods  by  act  of  public  enemy 585 

contract  of  clerk  to  forward  letters  and  baggage  of  guest 585 

IN  PARI  DELICTO— 

effect  on  contracts    176 

note  to  compound  a  felony — illegal 500 

INQUISITION  OF  LUNACY— 

when  found — contracts  of  lunatic 12 

INSANE  DELUSIONS— 

of  parties — power  to  contract 8 

what  is   8 

INSANE  PERSONS— 

what  is  insanity  5 

void,  voidable  and  valid  contracts  of 9 

restoration  of  reasons — contracts 10 

third  party  furnishing  necessaries 11 

contracts  for  necessaries  11 

marriage  of   13 

validity  of  their  notes   14 

can  he  be  adjudged  a  bankrupt 15 

as  partner — efiect    15 

taking  out  life  insurance 16 

affirmance  and  avoidance  of  contracts 21 

bona  fide  purchaser  from 22 

avoiding  sale  to  hojia  fide  vendee 22 

contracts  of — relief  in  equity  25 

liable  for  necessaries   471 

liability  of  his  estate  for  necessaries 472 

INSANITY— See  Insane  Persons. 


902 


IWDHX. 

INSOLVENCY — See  Composition  Ageeements.  See. 

assignment  for  benefit  of  creditors — effect 170 

composition  agreement    171 

secret  preferences   172 

of  co-surety — liability  of  co-surety 391 

assignment  for  benefit  of  creditors 506 

set-off  against  assignee  507 

priorities  in   508 

of  vendee  on  conditional  sale — effect  on  the  vendor's  rights 704 

INSPECTION  LAWS— 

inspection  of  chattels  for  sale  according  to  law — failure  to  inspect  202 

INSTALLMENTS— 

payment  of  interest — how  made 242 

by  the  month  or  week — to  draw  suit  of  clothes — ^validity 272 

failure  to  pay — breach  of  contract ,. . .  662 

IN  STATU  QUO— 

avoiding  insane  person's  contract — placing  in  statu  quo 22 

American  and  English  doctrine 22 

avoidance  of  insane  person's  contract — placing  in  statu  quo 25 

INSURANCE — See  Insukance  Contracts. 

on  insane  person  16 

contract  of  infant — ^voidable   46 

oral  contract  for — not  within  the  statute  of  frauds 80 

policy  dated  and  delivered  on  Monday — insured  examined  on  Sun- 
day— effect   185 

contracts — what  law  governs  404 

assignment  of  policy — interstate 405 

when  money  paid  for,  may  be  assigned 518 

regulation  of,  under  police  power ,  545 

INSURANCE  CONTRACTS— See  Insurance. 

wagering  contracts  of  insurance 266 

assignment  of  policy 267 

limiting  amount  of  debt  in 268 

benevolent  associations   269 

INTENTION— 

as  to  completion  of  sale 149 

necessary  to  constitute  usury 208 

to  deal  in  futures  254 

as  controlling  in  interstate  contracts 396 

as  to  smuggling — contracts    414 

as  to  what  place  shall  govern  the  rate  of  interest — law  of  another 
State    417 

INTEREST— 

agreement  to  pay  by  infant  is  voidable 27 

when  taking  above  legal  rate — usury  per  se 208 

on  loans  above  legal  rate — usury 210 

903 


INDEX. 

INTBRBST— (continued)  Sec. 

taking  more  than  the  legal  rate — accommodation  paper — usury.  .  .;  212 

taking  personal  property  as  interest  when  usury 213 

payment  of  quarterly  or  semi-annually  is  not  usury 216 

payable  in  advance — when  usury 217 

coupon  notes  drawing,  not  usury 224 

recovering  back  usurious  interest 225 

computation  of  interest — compounding — when  usury 226 

taxes  and  expenses — taking  legal  rate  besides — usury 227 

commission  and  discount — usury 228 

mistake  in  taking  too  great  amount — effect — usury 233 

on  renewal  notes  and  mortgages,  when  usury 234 

place  of  payment — usury — conflict  of  laws 240 

payment  of  may  be  controlled  by  contract. 241 

computation  at  stated  periods — as  to  usury 242 

payment  on  mortgage  debt — how  computed 242 

when  does  the  lex  loci  solutionis  control  payment  of 399 

usurious — another  State  law 417 

changing  rate  of,  on  judgment 563 

reducing  rate  of,  in  redemjJtion 564 

upon  unliquidated  damages 691 

INTEKNAL  EEVENUE— 

license  fees  imposed  on  attorneys — failure  to  take  out  license 199 

INTEKNATIONAL  COMMERCE— 

how  regulated   323 

INTERPRETATION— 

of  statute — prohibition  and  penalty 175 

malum  prohibitum  and  m,alum  in  se — statutes 176 

of  Sunday  contracts — constitutionality  of 181 

of  contracts  made  on  Sunday 183 

no  prohibition  of  Sunday  contracts , 184 

of  law  prohibiting  barbers  to  work  on  Sunday 188 

what  are  works  of  necessity  to  be  performed  on  Sunday 188 

when  telegrams  are  work  of  necessity 188 

ratification  of  void  contract 192 

of  contracts  prohibiting  contracts 196 

of  ordinance — establishing  an  exorbitant  fee  for  doing  business.  .  .    198 

of  law  favoring  old  soldiers 198 

of  laws  imposing  license  fee 199 

of  license  law  imposed  on  physicians 200 

right  of  physician  to  refuse  to  call  upon  patient 200 

a  law  requiring  teacher  to  take  out  certificate  to  teach 201 

of  child  labor— law 203 

contracts  void  in  part  and  valid  in  part 204 

what  law  governs  as  to  usury 237 

of  gambling  laws   253 

904 


INDEX. 

INTERPRETATION— (continued)  Sec. 

intent — deal  in  futures   ^ 254 

a  statute  to  recover  back  money  lost  in  gaming 260 

a  statute  prohibiting  the  giving  of  trading  stamps 270 

of  contract  to  employ  only  union  labor 301 

of  contracts  in  restraint  of  trade 315 

of  contract  in  restraint  of  trade 316 

dealing   with   exclusive   persons 316 

sale  of  secret  process 316 

sale  of  goodwill  of  business 316 

of  interstate  contracts 398,   419,  420 

courts'  decisions — authority  of 531 

jurisdiction  of  U.  S.  Supreme  Court 531 

of  contracts — conflict  of  laws 533 

controlling  effect  of  State  court  decisions  in  other  jurisdictions..  533 

of  charter   534 

of  private  contracts  540 

of  police  power  of  State 547 

INTERSTATE  COMMERCE— 

and  Sunday  laws  182 

as  to  lottery  tickets 182 

sending  lottery  tickets  from  one  State  to  another 272 

how  regulated 323 

pooling  of  railroads   324 

sugar  refining  company 326 

is  under  Federal  law 411 

sending  lottery  tickets  into  another  State 411 

State  must  not  interfere  in  controlling  common  carriers 539 

what  is   326,  548 

conflicting  with  the  State  police  power 548 

right  of  Congress  to  delegate  its  powers 548 

State  statute  interfering  with 549 

law  providing  for  the  purchase  of  certain  dressed  stone 549 

INTERSTATE  CONTRACTS— See  Conflict  of  Laws. 

validity  of  contract — what  law  governs 395 

intention  and  agreement  396 

capacity  of  parties 397 

sale  of  personalty   398 

bills  and  notes  399 

marriage  contracts   400 

married  women   ; 401 

chattel  mortgage  lien  follows  the  property 402 

conveyances  of  real  estate 403 

insurance  contracts    404 

assignment  of  policy  of  insurance 405 

assignment   of    property 406 

905 


INDEX. 

INTERSTATE  CONTRACTS— ( coj^ijwed )  Sec. 

as  to  the  situs  of  pei'sonal  property 407 

exceptions  to  general  rule 408 

selling  intoxicants    409 

carriers — stipulations  exempting  from  negligence 410 

interstate  commerce 411 

Sunday  contracts    412 

gaming — futures 413 

smuggling  contracts 414 

enforcing  revenue  laws  of  another  country 415 

repeal  of  statute 416 

usurious  contracts    1 417 

void  usurious  contracts 418 

INTERSTATE  MONOPOLIES— 

regulated  by  Congress 323 

INTIMIDATION— 

what  is — in  strikes   336 

INTOXICANTS— 

sale  of,  comes  under  the  police  power 205 

sale  of,  in  prohibited  State 409 

sale  and  manufacture  of — when  under  the  Federal  law 411 

note  given  for — another  State  law 413 

manufacture  and  sale  of — when  a  nuisance 546 

soliciting  trade  in  different  States — State  law  regulating 549 

statute  incorporating  imported — effect  554 

INVOLUNTARY  ASSIGNMENT— See  Insolvency. 

what  law  governs   , 406 

JOINT  AND  SEVERAL  CONTRACTS— 

joint  contracts    368 

disability  of  joint  promisor 369 

judgment  against  joint  debtors 370 

survivorship   of   joint   liability 371 

in  equity — survivorship  of  liability 372 

under  the  Codes 373 

surety    374 

release  by  act  of  creditor 375 

covenant   not   to   sue 376 

joint  creditors  or  obligees i . .   377 

release  with  provision  378 

release  should  be  under  seal 379 

survivorship  of  joint  creditors,  .i 380 

release  by  creditors   381 

several  interested 382 

subscription  to  establish  business  enterprise 383 

revocation    384 

validity  of  subscription  contracts 385 

4 

906 


INDEX. 

JOINT  AND  SEVERAL  CONTRACTS— (co»<tm*e(J)  Sec. 

joint  and  several  contracts 386 

release  of  joint  and  several  promisors  by  law 387 

contribution     388 

in  what  property  may  be  made 389 

right  to  receive  contribution 390 

JOINT  AND  SEVERAL  CREDITORS— 

insolvency  of  co-surety   391 

must  the  principal  debtor  be  insolvent 392 

surety  discharged  by  act  of  promisee 393 

in  case  of  tort , 394 

JOINT  CONTRACTS— 

what  is — liability  of   368 

JOINT  CREDITORS— See  Joint  Obligees. 

release  of  joint  obligee — effect 381 

several  interests — who  may  sue 382 

JOINT  DEBTORS— See  Joint  Oeligoes. 

suit  brought  against  382 

subscribe  to  establish  business 383 

joint  and  several,  liability 386 

release  of  one,  by  law 387 

running  of  the  statute  of  limitations ,  634 

JOINT  OBLIGEE— See  Joint  Promisors. 

must  all  sue  together , 377 

must  all  join  to  bring  suit 377 

release  of  one  obligor — effect i 378 

survivorship  of    380 

release  of — should  be  under   seal i 379,  380 

JOINT  PROMISOR— 

disability  of  one — effect 369 

judgment  against   370 

death  of  one — survivorship  371 

survivorship  of  joint  liability  in  equity 372 

survivorship  of  liability  under  the  Code 373 

release  of  one  by  law 387 

death  of  one — survival  of  contract 592 

JOINT  TORT-FEASORS— 

contribution  among 394 

JUDGMENT— 

against  an  infant  is  voidable 27 

confession  of,  agreement  to  enter  is  only  an  executed  contract 184 

against  joint  debtors — plaintiff's  rights 370 

judgment  being  extinguished   370 

assignment — what  law  governs 395 

of  State — when  reviewable  by  the  U.  S.  Supreme  Court 531 

changing  rate  of  interest  on 563 

discharged  by  act  of  law 578 

90Y 


INDEX. 

LACHES —  Sec. 

right  to  open  an  account  stated 429 

in  equity — statute  of  limitations 625 

gross  laches  not  considered   in  equity 626 

LANDLORD  AND  TENANT— See  Lessor  and  Lessee. 

lease  executed  by  infant  cannot  be  avoided  by  the  lessee 66 

giving  tenant  notice  to  quit,  on  Sunday — effect 186 

breach   by   landlord — mitigation   of   damages 687 

LAWYERS— 

license  to   follow   their   practice — internal   revenue  license 199 

unlicensed — right  to   recover   fees 199 

LEASE— 

by  parol — for  one  year — when  within  the  statute  of  frauds..  135,  136 

LEASE  AND  RELEASE— 

of    infant    is    voidable 27 

LEGISLATURE— 

power    to   amend   charter 2 

LESSOR  AND  LESSEE— See  Landlord  and  Tenant. 

voluntary  payment  of  rent  by  tenant — recovering  back .   501 

when  lessor  may  assign  rent  to  accrue 518 

abolishing  by  legislature  of  distress  for  rent — effect 560 

destruction   of   building  before   occupancy  by  lessee — liability  of 

lessor 576 

notice  by  lessor  to  rescind  lease 597 

when  recision  of  contract  cannot  be  made 597 

LETTERS— 

as   written   proof   of   contract 85 

LEX  DOMICILLII— 

as  to  the  sale  of  personalty 398 

as    governing    marriage    contracts 400 

as  to  mariied  women 401 

as  surety — what  law  governs 401 

governs  involuntary  assignment 406 

LEX  FORI— 

gives  the  remedy 115,  406,  419 

governs  as  to  the  time  of  bringing  of  suits 638 

LEX  LOCI  CELEBRATIONIS— 

when  governs  the  waiver  of  the  statute  of  frauds 101 

oral  contract  for  sale  of  land  not  void 101 

governs  interpretation  of  contract 115 

as  to  insurance  policy 404 

control  stipulation  against  negligence  of  carrier 410 

governs   bill   of   affreightment 421 

LEX  LOCI  CONSIDERATIONIS— 

where  parties  contract i 413 

governing  contract — usury 417 

908 


INDEX. 

LEX  LOCI  CONTRACTUS—  Sec. 

when  it  governs 116 

as  to  the  sale  of  personal  property 398 

marriage  contracts i 400 

as   to  married  woman's   contracts 401 

as  to  validity  of  chattel  mortgage  lien ^ 402 

as  to  the  transfer  of  personalty 406 

in  the  interpretation  of  contract 419 

when   the  court  will   apply 420 

LEX  LOCI  SOLUTIONIS— 

governs  the  performance  of  contract 115 

as   to   payment   of   a   note 399 

for  the  payment  of  insurance 404 

LEX  REI  SITAE— 

as  to  sale  of  personal  property 398 

LIBEL— 

agreement  to  publish — illegal 164 

LICENSE— 

to    enter    land — no    trespass 112 

to  sell  intoxicants — effect , 205 

to  peddlers — old   soldiers 198 

to  practice  law — failure  to  take  out  internal  revenue  license.  ...  199 

is  a  theater  ticket  a  license  or  contract 509 

required  of  person  selling  goods 552 

LIEN 

of   chattel   mortgage — follows   the    property 402 

created  to  hold  proporty  of  corporations 541 

on    real    estate — changing    of 561 

specific   cannot   be   changed 562 

of    mortgage — statute    of    limitations i  629 

for   materials   furnished    on   building 660 

on  goods  by  vendor — in  conditional  sales — insolvency  of  vendee. .  704 

LIFE  INSURANCE— 

on  insane  person,  no  suicide  clause  in  policy 16 

suicide  by  impulsive  insanity  of  insured — effect  on  insurance....  17 
insured   knowledge   of   right   and   wrong — English   and   American 

doctrine 18 

self-destruction   of   insured — responsibility   of   insured 18,  19 

insured  "  die  by  suicide,  sane  or  insane  " 20 

LIMITATIONS— 

reduction   of   periods   of .  .  .  528 

of  the  time  to  bring  action 559 

LIMITATIONS,  STATUTE  OF— 

at  law 624 

is  a  statute  of  repose 624 

.      in  equity 625 

9  09 


nSTDEX. 

LIMITATIONS,  STATUTE  OF— (continued)  Sec. 

gross  laches 626 

rebuttal  of  presumption — continuing  contract 627 

beginning  to  run 628 

continuing   to    run 629 

trusts — unpaid  subscription 630 

death    of    ancestor 631 

absence  of  debtor  from  the  State 632 

absence  of  creditor  from  the  State 633 

joint  debtor 634 

surety's  liability 635 

statutory  provisions 636 

waiver  of  the  statute 637 

what  law  governs 638 

LOANING  AND  BORROWING— See  Loans. 

taking    interest — when    usury 209 

legal    interest — commission — usury 210 

agent   of   the   party   loaning — usury 211 

taking  a  bonus  for  loan — usury 216 

LOANS — See  Loaning  and  Borrowing. 

made  on  Sunday — recovery  of  money 195 

usurious  contracts — laws  of  another  State 417 

agreement  whether  the  interest  of  the  lex  loci  celebrationis  shall 

control 417 

when  illegal — action  to  recover 447 

LOBBYING  CONTRACTS— 

validity  of 284 

LOTTERIES— 

definition — trading  stamps 270 

gratuitous  distribution  of  property  by  lot  or  chance 271 

sale  of  lottery  tickets 272 

lottery  company  chartered  by  the  State 273 

how  governed — public  policy 274 

sending  tickets  into  another  State  is  interstate  commerce 411 

incorporation  of,  by  State — revocation  of  charter 547 

LOTTERY  COMPANIES— See  Lottery  Tickets. 

chartered  by  the  State — rights  of 273 

charter  a  mere  license  to  enjoy  the  franchise 273 

rights  of  the  legislature  over 273 

LOTTERY  TICKETS— See  Tickets. 

regulating  purchase  of 1 

may  be  subject  to  interstate  commerce 182 

LUCID  INTERVALS— 

of  insane  persons — power  to  contract 6 

LUNATICS— See  Insane  Person. 


910 


INDEX. 

MALICE—  Sec. 

alone,  not  sufficient  to  base  an  action 342 

in   case   of   strikes 342 

doing  an  act  legal  within  itself 345 

making  false  representations 346 

MANUFACTURERS— 

trying  to  control  retail  trade 315 

may  legally  manufacture  and  sell  to  one  person  only 317 

combining  for  mutual  benefit 322 

receiving  a  bonus  for  locating  plant 351 

MARGINS— 

bucket    shop    dealings 162 

selling  on — effect 248 

MARKET  PRICE— 

of  grain — what  is 250 

MARRIAGE— 

of  insane  persons 13 

void  ab  initio  does  not  need  a  decree  of  court  to  annul 13 

by  infant — when  valid  contract 31 

of  minor  emancipates  him,  with  or  without  parent's  consent 29 

governed  by  the  lex  loci 400 

leaving  State  to  evade  law,  effect 400 

creates  a  marital  status 400 

not  naturally  unlawful  in  another  State — effect 408 

employment — servant  agreeing  not  to  marry — effect 474 

promise  to  marry — breach  of 476 

promise  to  marry  a  certain  person — marrying  another 607 

MARRIAGE  BROKERAGE— 

legality  of  contracts 275 

MARRIED  WOMAN— 

can  affirm  contract  as  provided  by  law,  as  to  real  estate 32 

may  affirm  a  covenant  entered  into  when  a  feme  sole 32 

interstate  contracts — effect 396 

capacity  to  contract — what  law  governs 401 

work  and  labor  of  a  supposed  wife — recovery  for 461 

MASTER  AND  SERVANT— See  Employer  and  Employe. 

when  infant  can  recover  for  services 62 

limiting  master's  liability  to  servant 299 

limiting  master's  liability  to  servant — servants  ^receiving  from  as- 
sociation    300 

interference  of   third   parties — boycott 341 

malicious    interference — effect — is    it    restricted    to    master    and 

servants 343 

period  of  employment  of  servant  not  determined — interference . .  344 

servant  discharged  by  false  representations  of  third  party — action  347 

master  cannot  assign  over  his  apprentice 519 

911 


INDEX. 

MASTER  AND  SEB.V ANT— (continued)  Sec. 

wrongful  discharge  of  employe 602 

contstructive  service 603 

services  to  be  performed  in  the  future 604 

duty  of  employe  to  seek  other  work 605 

offer  to  render  service 606 

mode  of  rescission  of  contract  by  employer 607 

employing  anotlier  to  work  on  personalty 608 

employing  another  to  affix  to  real  estate  a  machine 609 

damages'  recoverable 610 

after  notice  of  rescission — duty  of  employe 611 

MATRIMONIAL  BUREAU— See  Marriage  Brokerage. 

MAXIMUM  RATES— 

effect   of   State   establishing   maximum   rates   of   charges   of   cor- 
porations    538 

must  not  destroy  a  business  by  the  establishment  of 539 

MECHANIC'S  LIEN— 

does  not  apply  to  infant's  property. 46 

MEMORANDUM  UNDER  STATUTE  OF  FRAUDS— 

what  is  a  valid  memorandum 83 

delivery  of  note  or  memorandum 84 

letters,  telegrams  and  other  papers 85 

evidence   of   contract 86 

sale  by  auctioneer  or  broker — sufficiency  of  memorandum 87 

description  of  parties 88 

evidence  to   identify   parties 89 

parol  evidence  to  identify  agent  or  principal 90 

terms  of  memorandum 91 

description   of   subject-matter 92 

consideration 93 

for   value    received 94 

seal — consideration 95 

guaranty — consideration 96 

signature 97 

mutuality  of  agreement ^  98 

signature   by   agent 99 

MENTAL  SUFFERING — 

as  a  matter  for  damages  for  breach  of  contract. 693 

statutory  provisions — valid 693 

MERGER— See  Pooling. 

MESSAGES— 

of  telegraph  companies — limiting  liability  for  mistakes  in  send- 
ing  29G,  297 

MILEAGE-BOOK— 

is  a  contract  between  the  railroad  and  passenger 292 

MINORS — See  Infants. 

912 


INDEX. 

MISREPRESENTATIONS—  Sec. 

of  infant  as  to  age — effect 67,     68 

of  infants — in  equity 70 

MISTAKE— 

in  an  account  stated — effect 427 

in  writing  up  pass-book — effect 428 

payment  under — mistake  of  fact ' 450 

of  law  in  payment — effect 452 

of  law   in   equity 453 

of   fact   in   compromise 454 

MONOPOLIES— 

contracts  in  restraint  of  trade 320 

division  of 320 

combinations  of  manufacturers  for  their  own  welfare 322 

in    international   and   interstate   trade 326 

by  common  cari'iers — regulation  by  State 538 

MORTGAGE— 

of  infant  is  voidable 27 

of    infant — how    ratified 53 

interest  on  debt — how  computed  on  foreclosure 242 

assumption  of  debt — rights  of  mortgagee  to  sue 353 

securing  note  made  in  another  State 399 

foreclosure — what  law  governs 403 

interest  on  secured  note — whether  usurious 417 

MORTGAGEE— 

right  to  sue  party  assuming  debt 353 

MORTGAGOR  AND  MORTGAGEE— 

changing  time  of  redemption 561 

resale  of  mortgaged  property  when  bought  by  the  mortgagor 567 

MUNICIPAL  CORPORATIONS— 

liability   on   implied    contracts " 459 

MUNICIPALITY— 

partial  assignments — of  debts  of 523 

MUTUALITY— 

in  contract  under  the  statute  of  frauds 98 

signed  by  party  to  be  charged 98 

NATIONAL  BANKS—    • 

interpretation  of  statute  regarding 175 

contracts — usury 232 

NECESSARIES— 

insane  person's   contract   for II 

contract  for  by  infant  is  valid 39 

what  are,   for  infant 40 

what  are — how   determined 40 

things  not  necessary 41 

what  things  are  not  necessaries  for  infant 41 

913 


INDEX. 

NECESSARIES— (coMiijnted)  Sec. 

what  things  are  necessaries  for  infant 43 

of  infant  living  with  father 4F 

payment    for    by    another — effect 48 

value  of  articles  furnished  to  infant 49 

what  are,  is  a  mixed  question  of  law  and  fact 50 

for  wife  and  children — husband  and  father  bound 457 

for  wife — implied  contract 468 

for  minors 469 

for  insane  persons — implied  contract 471 

NECESSITY— 

work  of — made  on  Sunday 188 

limitation   of 188 

running  passenger  and  freight  trains  may  be  carried  on 188 

NEGxVTIVE— 

of  photograph — to  whom  does  it  belong 340 

NEGLIGENCE— 

limiting   liability — common    carriers 288 

limiting  liability — express  companies 289 

liability  limited  as  to  losses  not  from  its  own  negligence 290 

limitation  of  liability  of  common  carrier  by  notice  on  ticket 292 

tickets  as  a  contract 293 

coupon  tickets — rights  of  connecting  lines 294 

free  passes 295 

of  telegraph  company  in  sending  message 297 

of  telephone  companies^-liability 298 

limiting  liability  of  master 299 

third  party  injured — whether  privity  of  contract 348 

stipulation  exemption  interstate  carriers — effect 410 

of  depositor  to  examine  pass-book 428 

by  common  carrier — effect 583 

NEGOTIABLE  PAPER— See  Bills  and  Notes. 

NEW  PROMISE— 

positive  and  exact  by  infant  to  affirm  deed 65 

NEWSPAPERS— 

publisher  of,  trying  to  control  advertising — whether  any  remedy.  .  315 

NEXT  OF  KIN— 

suing  for  promise  made  for  the  benefit  of  his  father 361 

NON-AGE— 

of  parties  who  marry — effect 31 

NON  COMPOS  MENTIS— 

meaning  of 8 

of    accomodation    indorser — defense 14 

NON-PERFORMANCE— 

of  personal  services 589 

wlieve  personal  skill  is  not  required 590 

914 


INDEX. 

NON-PERFORMANCE—  ( continued )  Sec. 

on    account    of    sickness 591 

death  of  employer 592 

NORTHERN  SECURITIES  COMPANY— 

merger  of  railroads — legality 324 

governed    by    Congress 324 

interstate    traffic — regulation    of 324 

NOTICE— 

by  express  company  on  its  receipts  as  to  liability 289 

in  bill  of  lading — brought  to  attention  of  shipper — legality 290 

on  back  of  ticket  limiting  railroad's  liability — how  served 293 

in  telegraph  blank — when  sender  of  message  is  charged  with  notice  297 

of  goods  furnished  by  one  not  contracted  with — acceptance 478 

of  voluntary  payment  of  money  as  to  third  party 502 

of  holder  of  money  that  it  was  stolen 502 

of  asignee  to  protect  his   title 508 

of  condition  in  theater  ticket 509 

of   rescission   of   contract 594 

to  rescind — when  served  on  the  opposite  party. .  , 597 

what    is    sufficient 597 

bringing  suit  may  be  notice 597 

of  rescinding  contract  for  services  in  future — rights  of  employe..  604 

of  rescission  of  contract — duty  of  employe 611 

given  to  agent  of  rescission 611 

to  terminate  contract-reservation 621,  623 

to  vendor — sale  for  special  purpose — damages 685 

NOVATION— 

release  of  debtor — whether  within  the  statute  of  frauds 130 

NUISANCES— 

when  property  may  be  destroyed 546 

OBLIGOR  AND  OBLIGEE— 

rights  of  assignee  of  bond 508 

OCCUPATIONS— 

laws  for  protection  of  women  and  minors  are  valid 544 

when   State   may   regulate 544 

OLD  AGE— 

as  incapacity  to  contract 7 

OLEOMARGARINE— 

prohibiting  manufacture  and  sale  of 542 

regulating    sales    of 550 

OPERA  TROUPE— 

failure  of  manager  to  perform  contract 589 

OPTIONS- 

on  contracts — validity 249 

when  a  wager,  void 249 

right  of  innocent  holder  of  note  given  for  option  transaction 257 

915 


INDEX. 

OPTIONS—  ( continued )  Sec. 

in  futuers — law  of  another  State 413 

not   gaming   contracts 413 

to  purchaser  of  goods 613 

contracts — specific  performance  of 669 

ORAL  AGREEMENT— See  Parol  Contract. 

to  bequeath   or   devise — legality 465 

when  performance 465 

ORDINANCE— 

establishing  an  exorbitant  fee  for  doing  business 198 

ORDINARY  CALLING— 

what  is — Sunday  laws 187 

PACKAGE— 

registered  letter  sent  by  common  carrier — lost — liability  of  rail- 
road company 291 

PARDON— 

contract  to  secure 287 

PAROL  CONTRACT— See  Oral  Agreement. 

to  convey  land — when  enforced 467 

PARTIAL  ASSIGNMENTS— 

at  law — effect 521 

with   consent  of  debtor 522 

in  equity 524 

when  sustained 526 

PARTICEPS  CRIMINIS— 

debtor  and  creditor — secret  preferences  in  insolvency 172 

effect  on  contract 176 

selling  grain  on  board  of  trade 251 

rights  of  parties 275 

when  parties  are  not  in  pari  delicto — relief 500 

PARTIES— 

right  to  contract 1 

insanity  of — effect 5 

having  insane  delusions — power  to  contract 8 

description  of,   in  memorandum 88 

who  must  sign  memorandum 88 

signed  by  party  to  be  charged  under  the  statute  of  frauds 98 

who  may  plead  the  statute  of  frauds 113 

paying  debt  of  another — to  whom  must  the  promise  be  made....    123 

when  they  may  unite  to  buy  on  joint  account 109 

ratification  of  void  contract 192 

Sunday  note — in  the  hands  of  an  innocent  third  party 193 

injuring  the  trade  of  another 315 

in  pari  delicto — enforcement  of  illegal   contract 330 

rights  of  relatives  to  photographs  of  the  dead 340 

duty  not  to  interfere  in  any  contract 342 

916 


INDEX. 

PARTIES—  ( continued )  See. 

who  are — to  a   contract 339 

taking  news  from  ticker — who  has  the  right 339 

when  third  persons  may  become  a  party  to  a  contract 352 

assumption  of  mortgage  debt — right  of  mortgagee  to  sue 353 

must  be  something  more  than  a  mere  promise 354 

acceptance  by  third  party 355 

contract  for  the  benefit  of  third  persons — modification  of  general 

rule 356 

exceptions  to  the  modified  rule 357 

party  to  the  consideration — trust 358 

promise  as  agent 359 

English  doctrine 360 

next  of  kin — right  to  sue 361 

covenants 362 

covenants — another  rule 363 

who  may  bring  suit  on  simple  contract 364 

description    of    the    debts 365 

agreement    to    save    harmless 366 

many   promisors — suit   against 367 

capacity    to    contract — interstate 397 

members  of  the  same  family — services  among 460 

in  pari  delicto — relief  of 500 

PARTITION— 

of  infant — when  legal 37 

PARTNER— See  Partnership. 

giving  his  individual  note  as  payment  of  firm's  debt — effect 370 

when  one  partner  can  sue  another  after  dissolution 433 

PARTNERSHIP— See  Partner. 

insanity  of  partner — as  to  dissolution  of 15 

of   infants   are   voidable 27 

contract   of   infants — time    to   avoid 60 

compelled  to  pay  debt  of  partner — rights  of 431 

of   partners   after   dissolution 433 

one  party  to  a  sale  acting  through  a  partnership. 649 

PART  PAYMENT— See  Earnest  and  Part  Payment. 

distinguished   frorii   earnest   money 153 

when  must  part  payment  be  made 154 

what  constitutes  part  payment 155 

in  what  property  must  part  payment  be  made 156 

tender — statute  of  frauds — must  be  of  some  value 156 

PART  PERFORMANCE— 

takes  contract  out  of  the  statute  of  frauds,  when 81 

at  law — under  the  statute  of  frauds 102 

marriage,  coupled  with  possession  of  land,  is  part  performance..  102 

in  equity 103 

917 


INDEX. 

PART  FERFOBMANCE— (continued)  Sec. 

what  is 104 

by  taking  possession  and  making  permanent  improvements 105 

by  personal  service  and  conveyance  of  personal  property 108 

services  rendered  or  benefits  received 110 

of  contract  to  convey  land 467 

of  contract  to  furnish  labor  or  material — quantum  meruit 473 

taking  care  of  party — recovery 474 

of  contract  for  personal  service 475 

of   void    contract — recovery 479 

under   no   obligations   to   perform — part   performance — recovery.  .  480 

failure  to  pay  in  the  manner  agreed  to 481 

rescission  of  contract 482 

PASS-BOOK— 

whether  an  account  stated 428 

object  of 428 

eflect  of  being  written  up 428 

PATENTEE— 

rights  of — restraint  of  trade 328 

when  under  police  power 547 

PATENTS— 

rights   of   patentee 328 

owners  of  different  patents  in  single  article — restraint  of  trade..  329 

selling  of — discrimination 551 

sale  of — specific  performance  of  contract 673 

PAYMENT— 

of  wages 2 

of  infant's  debt  by  another — eflect 48 

of  consideration   alone   does  not  take   sale  out  of  the  statute  of 

frauds 102 

of  purchase-money  as  part  performance 104 

of  money  and  labor — part  performance 108 

of  consideration — oral  agreement  to  convey  real  estate — recovery 

back   purchase   money 109 

of  debt  guaranteed — as  to  the  statute  of  frauds 127 

of  liquidated  debt — exception  as -to  part  payment 171 

secret  preferances  by  insolvent — eflect  on  assignment 172 

of  money  on  Sunday — effect 195 

of  interest  quarterly  or  semi-annually  is  not  usury 216 

of  interest,  may  be  controlled  by  contract 241 

of  interest  on  mortgage 241 

of  debt  in  gold  coin 278 

voluntary  payment  of  another's  debt — rights  of  the  parties 340 

by    surety — in    what    property 389 

of  insurance  loss 404 

of  forged  check  by  bank — liability 428 

918 


INDEX. 

PAYINIENT (continued)  Sec. 

of  the  debts  of  another — effect 430 

under  obligations 431 

voluntary  payment  raises  no  assumpsit 433 

right  of  partner  after  dissolution 433 

in  suretj'ship 434 

to  save  property  of  another 435 

contribution 436 

contribution   among  wrongdoers 437 

contributions  among  wrongdoers — exceptions  to  the  general  rule.  .   438 

indemnity 439 

fraud 440 

before  party  can  collect  for  payment  of  another's  debts — he  must 

pay 441 

how  made , 441 

of  express  contracts 442 

of  void   contracts 443 

of  money  on  void  contract— effect 443 

difference  between  express  and  implied  contracts 444 

action  for  money — not  property 446 

when    voluntary — eflect 449 

under  mistake  of  fact — effect 450 

of  commission  by  both  seller  and  buyer 451 

by  mistake  of  law — effect 452 

under  duress 452 

what  will  make  it  voluntary 452 

of  settlement  by  compromise — mistake 454 

under  duress — effect 455 

of  taxes  and  assessments 456 

of  taxes  under  duress — recovery 496 

voluntary  payment  of  money — recovering  back 501 

voluntary  payment  of  money — notice  to  third  parties 502 

of  debts  with  stolen  money — rights  of  true  owner 504 

as  to  statute  of  limitations 624 

presumption  of 624 

of    debts    of    corporation — unpaid    subscription    stock — statute   of 

limitations 630 

part  payment  by  one  joint  debtor — statute  of  limitations 634 

reviving  of   debt — lex  fori  governs 638 

when  payable  on  contract  work 647 

partial  payment  as  evidence  of  acceptance  of  work 652 

by  composition  with   creditors 700 

PEDDLERS— 

acting   without   license 198 

cannot  be  favored  by  the  legislature,  because  they  are  old  soldiers  198 


919 


rPTDEX. 

PENALTY—  Sec. 

implies   a    prohibition 173 

and  prohibition  by  statute 175 

prohibition   of   contract — effect 175 

imposed  for  administrative  purposes 177 

acts  impliedly  prohibited 178 

for  selling  articles  without  inspection 202 

PENSIONS— 

fees  in  collecting  of,  may  be  limited  by  Congress 540 

PEONAGE— 

definition 174 

contracts,  illegal 174 

act  of  Congress — construction 174 

PERFORMANCE — See  Specific  Perform ance;   Part  Performance. 

substantial  performance  of  contract — effect 477 

one  party  standing  ready  to  perform — his  rights 480 

failure  to  pay  as  agreed  to 481 

of  work  and  labor 481 

action  for  part  performance 481 

dilliculty  and  hardship  will  not  excuse 5U9 

condition  precedent 570 

non-existence  of  subject-matter  of  contract 571 

subject-matter  of  contract  ceasing  to  exist 572 

impossibility  of  performing  a  contract  arising  subsequently 573 

in  commercial  transactions 574 

bailment  of  an  article  to  be  repaired 575 

excused  by  act  of  law 576 

two   ways   of 577 

judgment  and  other  judicial  processes 578 

promisee  preventing 579 

when  excused  by  act  of  God 580 

when    excused    by    public    enemy — act    of    God — application    to 

common  carriers 582 

common  carriers,  when  liable  by  loss  by  act  of  God 583 

where  law  imposes  a  duty 585 

innkeepers'  liability 585 

failure  of  consideration  by  act  of  God 586 

destruction    by    fire 587 

intervention  by  the  act  of  God 588 

tender  of — when  not  necessary 606 

to  perform  work  and  furnish  materials 639 

substantial  performance — good  faith 640 

time  of 641 

condition  in  contract  for  arbiter  as  to  performance 642 

arbitration   clause   in   contract 643 

the  arbiter's  decision  must  be  pertinent 644 

920 


INDEX. 

PERFORMANCE—  ( continued )  Sec, 

fraud  in 645 

dispensing  with  the  production  of  the  architect's  certificate 646 

time   of   performance 647 

waiver  of  time  of 648 

one  party  acting  through  a  partnership 649 

work  must  be  performed  in  a  workmanship  manner 650 

receiving  benefit  of  service 651 

partial  payment  as  evidence  of  acceptance  of  work 652 

sufficiency  of   performance 653 

manufacturing  articles   according  to   sample — delivery 654 

substantial  performance 655 

matters  excusing  non-performance 656 

implied  condition  as  to  contingent  impossibility  of  performance..  657 

implied  condition  of  contracts .  .  658 

why  implied  conditions  attach  to  conracts 659 

failure  of — by  acts  of  the  promisor 660 

matters  excusing  delays 661 

what  constitutes  breach 662 

owner  of  building  promising  to  see  seller  of  materials  paid 663 

acceptance   and  waiver 664 

risks    during    performance 665 

part   of   performance 666 

PERSONAL  PROPERTY— 

legal  situs 398 

situs  of 407 

as  to  domicile  of  owner 407 

PERSONAL  SERVICES— 

nature  of — performance 589 

when  skill  is  not  required — as  to  performance 590 

sickness — effect  on  contract 591 

death  of  employer 592 

death  of  one  of  two  employers 592 

PHOTOGRAPHS— 

right  to  photographs 340 

right  of  privacy  of 340 

PHYSICIANS— 

curing  by  telepathic  methods — libel  by  newspaper 164 

laws  requiring  license — failure  to  take  out — effect 200 

not  a  common  carrier — need  not  attend  patients  unless  so  disposed  200 

sale  of  practice — restraint  of  trade 319 

services  rendered  in  case  of  emergency — implied  contract 484 

regulation  of  practice  of  by  State 550 

action  against — as  to  the  statute  of  limitations 628 

PICKETING — 

what  is 336 

intimidating   non-union   men 336 

921 


INDEX. 

PLEADINGS—  Sec. 

when  the  statute  of  frauds  can  be  pleaded 112 

who  may  plead  the  statute  of  frauds 113 

waiving  the  statute  of  frauds 114 

who  may  plead  usury 237 

waiver  of  usury 238 

law  of  another  State — must  be  pleaded  as  to  usury 243 

suing  on  joint  contract 368 

misjoinder   of   defendants,   obligees 377 

allegation  in  declaration  to  recover  on  implied  contract 444 

set-otf — waiving  tort 490 

under  the  Code 527 

POLICE  POVVEE— 

payment  of  wages 2 

controls  the  sale  of  intoxicants 205 

regulating  the  sale  of  food 542 

reasonableness  of  food  regulation 543 

as  to  occupations 544 

insurance 545 

destruction   of   property 546 

controlled  by  Federal  Constitution 547 

interstate  commerce 548 

State  statute  interfering  with  interstate  commerce 549 

surrender  of  the   police   power 550 

imposing  a  tax  upon  selling  goods 551 

tax  upon  interstate  commerce 552 

when  is  an  imported  commodity   incorporated  with   the  general 

mass  of  property 553 

statute  incorporating  imported  goods 554 

POLICY— 

of  life  insurance — no  suicide  clause 16 

of  insurance  on  insane  person — suicide  of 17 

of  insurance — suicide  clause — self-destruction — American  doctrine  19 
of  insurance — clause  inserted,  "'die  by  suicide,  sane  or  insane" — 

meaning 20 

of  insurance — what  law  governs 404 

assignment  of — interstate 405 

of  insurance — when  assignable 518 

af  insurance — after  loss — may  be  assigned 526 

of  life  insurance — insured  committing  a  crime — effect 545 

POOLING- 

of  railroads — effect — corporate  trusts 323 

railroad  business 324 

rebates   to   shippers 325 

monopoly  in  interstate  and  international  trade 326 

corporate  trusts  and  labor 327 

922 


INDEX. 

POOL  SELLING—  Sec. 

whether  legal 264 

POSSESSION— 

alone,  of  land,  as  to  part  performance 102 

of  land  as  part  performance 105 

POWER  OF  ATTORNEY— 

to  assign  public  officer's  salary 517 

PREFERENCES— 

by  insolvent  when  assigning 171 

secret  pi'eferences  by  assignors — effect 172 

PREMIUM— 

given  at  horse  racing — whether  gambling 262 

buying  stock  at  a  ficttitious  price — when  fraudulent 163 

difference  as  to  wager 265 

PREMIUM  AND  EXCHANGE— 

taking — when  usury 221 

PRICE— 

essential  element — within  the  statute  of  frauds 141 

of  goods  paid  on  Monday,  sale  executed  on  Sunday 185 

taking  lower  price  for  cash  than  when  credit  is  given — usury.  .  .  .   214 

in  purchase  price  of  land — cash  sale  or  on  credit — usury 215 

lowering  price  by  merchant — informing  retailers — as  to  malice..    315 

of  book  reserved  by  publisher — when  sale  is  made 339 

recovery  of — sale   prohibited 409 

in  smuggling  contracts — collection  of 414 

working  on  personalty — rescission  of  contract — right  to  recover .  .    608 

PRINCIPAL  AND  AGENT—  See  Agency. 

verbal  guarantee  of  solvency  of  purchaser  by  agent — not  within 

statute  of  frauds 128 

executed  contract  by  agent  for  principal — principal's  rights 195 

agent  taking  commission  for  loaning  principal's  money — usury.  ...    211 
agent  soliciting  passenger  traffic — when  interstate  commerce....    182 

railroad  through  tickets — state  and  interstate  service 182 

agent  taking  commission  for  loaning  money — when  usury 228 

principal  may  charge  for  extra  expense 228 

promising  as  agent — benefit  of  third  party 359 

agent  acting  for  both  principals , 451 

agent  receiving  commission  from  seller  and  buyer — effect 451 

right  of  agent  to  bring  assimipsit  for  his  injured  principal 494 

fraud  of  agent — principal's  liability 503 

extra  services  of  agent 620 

no  limitation  as  to  the  time  of  hiring 622 

PRINCIPAL  AND  SURETY— 

joint  obligation — death  of  one — effect 374 

release  by  act  of  creditor 375 

must  principal  be  insolvent  before  surety  can  bring  action  for  con- 

923 


INDEX. 

PRINCIPAL  AND  SURETY— (continued)  Sec. 

tribution 392 

liability  for  fraud  of  principal — as  to  statute  of  limitations  run- 
ning     635 

PRIORITY— 

of  chattel  mortgage  lien 402 

of  assignee , 508 

PRIVACY— 

right  of 1 340 

PRIVITY— 

of  parties — right  of  privacy 340 

of  parties — negligence 348 

when  exists  between  parties 351 

of  estate — receiving  money  belonging  to  another — implied  contract  445 

selling  land  with  no  title 445 

when  there  is  none  between  parties 457 

as  to  implied  assumpsit 457 

of  contract — waiving  tort  and  suing  on  the  implied  contract....    491 

PROFESSIONAL  SERVICES— 

as   attorney   to   procure   legislation 285 

PROFITS— 

sales  at  auction — conspiracy  among  buyers — division  of  profits.  .    165 
as  a  matter  in  estimating  damages  for  breach  of  contract. 687,  688,  689 

as   damages — general    rule 695 

which  would  have  been  made 696 

contingent  not  allowed 697 

resale  by  purchaser 698 

PROMISE— 

to  pay  debt  of  another — to  whom  made 123 

to  pay  debt  of  another — when  within  the  statute  of  frauds 124 

to  pay  for  goods  sold  to  another — original  consideration 125 

PROMISEE— 

preventing  performance  of  contract — effect  on  promisor 579 

PROMISE  WITHIN  STATUTE  OF  FRAUDS- 

to  bind  third  parties  for  the  debt  of  another 122 

to   whom   made 123 

when  within  the  statute 124 

when  original 125 

evidence  to  place  liability 126 

to  pay  debt  on  behalf  of  promisor 127 

benefit  accruing  to  promisor 128 

of  indemnity 129 

release   of   original    debtor — novation 130 

receipt  of  property  out  of  which  to  pay  the  debt 131 

contractor  abandoning  work 132 


924 


INDEX. 

PROMISOR—  Sec. 

to  pay  debt  on  his  own  behalf 127 

promise  accruing  to  him — not  within  the  statute  of  frauds 128 

where  there  are  many — how  suit  shall  be  brought  against 367 

two  ways  of  performance 577 

destruction  by  fire  of  building  is  no  discharge  of  contract 587 

intervention  of  the  act  of  God — effect  on  contract 588 

failure  of  performance  by  acts  of , 660 

PROMOTERS— 

right  to  collect  pay  from  the  corporation  after  organized 463 

PROOF— 

burden  of — for  discharged  employee  seeking  other  work 605 

burden  of — selling  by  sample 612 

PUBLIC  ENEMY— 

excusing  performance  of  contract  by  acts  of 581 

excusing  liability  of  common  carrier 582 

where  law  imposes  a  duty 584 

PUBLIC  OFFICE— 

dismissing  officer — impairment  of  obligation  of  contract 426 

PUBLIC  OFFICER— 

assignment  of  unearned  salary 517 

PUBLIC  POLICY— 

as  to  contracting 1 

as  to  insurance  of  insane  person 16 

how  determined 274 

defense  of  public  policy 275 

stipulation  that  representation  shall  not  avoid  the  contract 276 

contracts  for  welfare  of  children ,  277 

contract   payable  in  gold   coin 278 

PUBLISHERS— 

trying  to  control  the  business  of  advertising  in  newspapers 315 

selling  his  books — what  rights  can  be  exercised 339 

contract  with   author  is  not  assignable 519 

PUFFERS — See  Auction;    By  Bidding. 

QUANTUM  MERUIT— 

when  infant  may  recover 62 

for  services  in  part  performance 110 

when  recovery  can  be  had 473 

recovery    on    personal    services 475 

recovery  for  part  performance  of  void  contract ,  479 

one   party   rescinding   contract 482 

when  party  may  recover  on — non-performance  of  contract 591 

when   discharged   employe  may   recover   on 602 

recovery  for   labor 655 

for  breach  of  contract  for  work 688 


925 


IKDEX. 

QUARANTINE—  Sec. 

laws — when  valid 549 

excluding  cattle  and  meats 549 

RAILROADS — See  Common  Carriers. 

when  not  common  carriers — special  contract 288 

hauling    circus    cars — liability , 288 

doing  an  interstate  business 288 

contracts  locating  right  of  way 302 

contracts  locating  stations  and  depots 302 

giving  telegraph  company  exclusive  privilege  to  set  poles 308 

must  not  create  a  monopoly  in  the  carriage  of  passengers  and 

property .    320 

pooling  of  their  business 324 

merger  of 324 

rebates   to   shippers 325 

monopoly    in    interstate    trade 326 

may    establish    reasonable   rates    among   themselves    for    self-pro- 
tection     326 

giving  employees  reason  for  their  discharge 537 

when  compelled  to  make  changes  in  roadbed 541 

RATIFICATION— See  Affirmance. 

of  contract  made  on  Sunday — void 192 

in  part  of  contract 598 

REAL  ESTATE— 

sale  of — what  law  governs • 403 

REBATES— 

to  shippers   by   railroad   companies 325 

RECOGNIZANCE— 

of   infant  is   valid 35 

RECOUPMENT— 

when  allowed  as  to  work 650,  651 

when  not  waived  by  acceptance  of  work 664 

REDEMPTION— 

change   of   time  of — effect 561 

reducing  rate  of  interest  on 564 

extending  period  of 566 

resale  wlien  bought  by  mortgagor  for  less  than  the  debt 567 

REGULATIONS— 

of  corporations  by  state 535,  536 

charters   of   corporations   are    contracts 536 

subsequent  acts   regulating  railroad  companies 537 

the  sale  of  food 542 

reasonableness   of   food   regulations 543 

by  states — excluding  food  products 549 

of  telegraph  company  by  state 649 

of  common  carriers 550 

926 


INDEX. 

RELEASE—  Sec. 

of  lien  on  property — promisor  to  pay  debt 127 

of  original  debtor — novation 130 

of  surety  by  act  of  creditor 375 

by  one  of  several  promisees — effect 377 

of  one  joint  obligee  with  conditions 378 

should  be  under  seal 379 

of  one  of  joint  obligors 387 

KEIMEDIES  UNDER  STATUTE  OF  FRAUDS— 

no  action  to  be  brought i 100 

void  and  voidable  contracts 101 

performance  in  part — at  law 102 

part  performance  in  equity 103 

what  is  part  performance 104 

possession  of  land  and  improvements 105 

parol  gift  of  real   estate 106 

specific    performance   of   agreement 107 

personal  service  and  conveyance  of  personal  property 108 

recovery  of  money  paid 109 

service  rendered  or  benefits  received 110 

use  and  occupation Ill 

defense 112 

who  may  take  advantage  of  the  statute  of  frauds 113 

waiver  of  statute  in  action  for  breach  of  contract 114 

conflict  of  laws 115 

conflict  of  laws — statute  of  frauds ,• 116 

HEMEDY— 

statute  of  frauds  concerns  the  remedy  only 113 

to  enforce   prohibited   contract 184 

to  collect  money  loaned  on  Sunday,  against  the  statute 195 

of  unlicensed  brokers  to  collect  commission  for  sale 198 

peddling  without  a  license — cannot  collect  for  services 198 

on  contract  partly  bad  and  partly  valia 204 

for  liquors  sold  without  license 205 

pleading  usury  laws  of  another  state 243 

to  enforce  option  contract 254 

to  recover  back  money  lost  at  gaming 259 

to  enforce  illegal  contract , .  .  330 

parties  in  pari  delicto 330-  332 

test  of  the  liability  of  trades  unions 335 

to  enforce  revenue  contracts  of  another  country 415 

interpretation  of  interstate  contract 419 

agreement  as  to  what  law  should  govern 420 

common  carriers — contract  of  afireightment 421 

alien   labor   acts 422 

impairment  of — laws  enter  into  the  contract  when  made 555 

927 


INDEX. 

REMEDY—  ( continued )  Sec. 

altering  the  remedy 556 

retrospective  acts 557 

exemptions 558 

limitations 559 

abolishing  remedy 560 

redemption  from  sales  of  real  estate , 561 

special  liens 562 

changing  rate  of  interest  on  judgment 563 

reducing  rate  of  interest  in  redemption 564 

change  of  procedure 565 

extending  the  period  of  redemption 566 

resale  when  bought  by  the  mortgagee  for  less  than  the  debt 567 

the  statute  of  limitations  affects  only  the  remedy 629 

when  law  furnishes  no  complete  remedy — specific  performance.  .  .  .  667 

specific   performance — mutuality 669 

contracts  relating  to  personalty 670 

at  law — specific  performances 671 

change  in  the  condition  of  one  party 672 

specific  performance — supervision  of  court 676 

contracts  involving  the  exercise  of  skill,  personal  labor  and  culti- 
vated judgment 677 

RENTS— 

voluntarily  paid — recovering  back 501 

future  rents  may  be  assigned 518 

REPAIRS— 

on  real  estate  of  infant,  not  a  necessary 42 

REPEAL— 

of  statute — effect  on  contracts 416 

of  statute  in  another  State — contract  made  there — effect 416 

REPLEVIN— 

of  goods  delivered  on  Sunday 195 

of  property  delivered  by  agent  on  Sunday — action  by  principal.  .  195 

REPRESENTATIONS— 

as  to  credit  under  the  statute  of  frauds — statutory  provisions.  .  .  .  157 

when  the  statute  of  frauds  applies 158 

sufficiency  of  writing  under  the  statute  of  frauds — as  to  credit, 

parol   evidence — representation  as  to  credit 160 

stipulation  that  false  representation  shal  not  avoid  a  contract..  276 

when  false — injury  to  third  party 346 

taking  as  true — pass-book — effect 428 

RESALE— 

buying  goods  to  resell — breach  by  vendor — damages 698 

RESCISSION— 

of  contract  for  benefit  of  third  person 355 

of  contract — must  be  in  toto 448 

928 


INDEX. 

r 

RESCISSION— {cowitn-wed)  Sec. 

action  for , 448 

of  contract — part  performance 482 

as  to  executed  contracts 593 

notice  and  acceptance  of 594 

right  to   rescind 595 

time  to  rescind , 596 

notice    to   rescind 597 

rescission  in  part 598 

recovering  back  consideration  paid 599 

sealed  contracts — to  recover  money  paid 600 

of  contract — as  to   damages 688 

of  contract — damages 690 

contingent  damages  for  breach 690 

RESCISSION,  CONDITION  SUBSEQUENT— 

selling  by  sample 612 

option  to  purchaser 613 

contract  of  hiring,  employe  guarantees  satisfaction 614 

contracts  of  common  carriers 615 

act  of  God  that  will  excuse  a  common  carrier 616 

shipment  of  live  stock 617 

hiring  contracts — implication  of  discharge 618 

reservation  of  wages  payable  at  certain  intervals 619 

extra  services 620 

reservation  of  right  to  terminate 621 

no  limitation  as  to  term  of  hiring 622 

notice    of   termination — reservation 623 

RESERVATION— 

in  charter  of  corporation — effect 541 

of  wages — payable  at  certain  intervals 619 

of  right  to  terminate  contract 621 

notice  of  termination  of  contract 623 

RESTRAINT  OF  TRADE— 

by  establishing  an  excessive  fee  for  doing  business 198 

by  corporations  in  a  public  business , 301 

contracts  of 309 

unreasonable  restraint 310 

English  doctrine  as  to  limitation  to  time  and  space — reasonable- 
ness      311 

American  doctrine  as  to  limitation  of  time  and  space 312 

test    of    reasonableness 313 

the  latest  statement  of  the  test  of  reasonableness 314 

Illinois   rule  is  arbitrary 314 

injuring   the  trade   of   another 315 

interpretation    of    contract 316 

dealing  with  exclusive  persons 316 

929 


INDEX. 

RESTRAINT  OF  TRADE— (continued)  See. 

sale  of  secret  process 316 

sale  of  good  will  of  business 316 

rights    of    patentee 328 

owners  of  diflFerent  patents  in  single  article 329 

RETROSPECTIVE  LAWS— 

effect  of 532 

REVENUES— 

enforcing  revenue  law  of  another  country 415 

REVOCATION— 

of  subscription  of  joint  debtors 384 

as  to  gifts 425 

RIGHT  TO  CONTRACT— 

right  of  State  over 1 

locating  by   railroads — rights 302 

RISKS— 

during  performance  of  building  contracts 665 

SALARY— 

teacher  cannot  collect  if  he  has  no  certificate  to  teach 201 

assignment  of  unearned — eff"ect 283 

of  public  officer  to  be  paid  is  not  property 426 

recovering  for  extra  services 462 

one  partner  may  engage  for  a  salary 483 

assignment  of  unearned  salary  by  public  officer 517 

of  public  officers — can  be  controlled  by  the  legislature 530 

of  school  teacher — if  school  house  burns,  goes  on  with  no  abate- 
ment    587 

of  school  teacher — closing  of  school 589 

SALES— 

by  insane  vendor  to  bona  fide  purchaser — validity  of 22 

by  infant  of  land — ratification  of  sale 53 

requisites  of  memorandum  of 88 

promise  of  one  to  become  responsible  for  goods  sold  to  another ....  122 

credit  given  to  the  receiver  of  the  goods 122 

of  goods — to  be  paid  by  a  third  party — when  within  the  statute 

of  frauds  125 

of  claim — guaranteeing  its  collection — not  within  the  statute   of 

frauds 127 

price  an  essential  element  of 141 

amount  of,  under  statute  of  frauds 142 

of  several   articles — amount — how   determined 143 

of  goods,  wares  and  merchandise 144 

earnest  money  under  the  statute  of  frauds 153 

when  must  part  payment  be  made 154 

what  constitutes  part  payment 155 

in  what  property  part  payment  may  be  made 156 

930 


INDEX. 

SALES — (continued)  Sec. 

by-bidding — effect  on  purchase , 165 

at  auction — by-bidding — when  I;  gal 167 

agreement  to  purchase  property  on  joint  account — at  auction....    169 

against  statute — effect 178 

of  goods  on  Sunday — delivered  on  a  secular  day — effect 185 

goods  delivered  on  Sunday — price  paid  on  Monday — effect 185 

when  within  the  Sunday  laws 187 

vessel  not  sealed — effect 197 

by  broker  having  no  license — collection  of  commission 198 

of  articles  without  inspection  according  to  law — effect 202 

of  intoxicants  without  license 205 

of  property — taking  commission  for  care  of  property — not  usury.  .   210 
of  property — taking  lower  price  for  cash  than  when  sold  on  credit 

— usury 214,  215 

of  securities — tainted  with  usury — in  the  hands  of  innocent  pur- 
chasers     230 

absolute  sale  with  agreement  to  repurchase — usury 231 

for  furture  delivery 248 

with  oi)tion — margins 249 

with   future   delivery — effect .  .   249 

intent — to  deal  in  futures 254 

as  to  option  contracts 254 

of  commodities  not   in   existence 255 

of    lottery    tickets — when    illegal 272 

of   offices — legality   of 279 

of  secret  processes — restraint  of  trade 318 

of  good  will  of  business — restraint  of  trade 318 

of  books — publisher  wishing  to  control 339 

of  photographs  without  owner's  consent 340 

of  articles — third  party  injured  by  vendor's  negligence 348 

of   personalty — place  of   contract 398 

vendor  reserving  title — what  law  governs 402 

of  real  property — what  law  governs 403 

interstate  laws 406 

of  merchandise  to  be  delivered  in  another  State 408 

interstate — controlled   by    Congress 411 

of  goods  on  Sunday — law  of  another  State 412 

for   smuggling   purposes 414 

selling  land  with  no  title — right  of  purchaser 445 

delivery  of  part  of  the  chattels  sold — remedy  of  purchaser 448 

of  theater  tickets — rights  of  purchaser 509 

of  property  under  execution — limiting  amount 565 

when   executed   cannot   be   rescinded 593 

purchaser    advancing   money — consideration   fails — effect   on   con- 
tract     595 

931 


INDEX. 

SALES —  ( continued )  Sec. 

by    sample — rescission    of    sale 612 

option  to  vendee  of  goods 613 

of    patent   rights — specific    performance 673 

of    personalty — specific    performance 674 

of  chattels  having  a  special  value — specific  performance 675 

of  property  for  special  purposes — breach  of,  damages 685 

of  articles  not  in  existence 694 

vendor  knowing  of  the  vendee's  profits — breach — damages 695 

to  purchaser  to  resell — breach  of — damages 698 

SAMPLES— 

manufacturing  of  articles  according  to 654 

SCALPING  CONTRACTS— 

in  sale  of  tickets — illegal i 173 

SCALPING  TICKETS— See  Tickets. 

SCHOOL  TEACHERS— 

must  have  certificate,  to  draw  pay 201 

assignment  of  unearned  salary 515 

agreeing  to  instruct  a  student — intervention  of  act  of  God 586 

burning  of  school  house — salary 587 

closing  of  school  by  board  of  health — salary  continues 589 

breach  of  contract  by  school  board — duty  of,  to  seek  other  em- 
ployment    686 

SEAI^- 

imports  a  consideration 95 

release  of  obligor,  should  be  under  seal. 379 

sealed    contract — how    interpreted 419 

contract  sealed — part  performance  of  void  agreement — recovery..  479 

contract  under  seal — suing  to  recover  money  back 601 

SEDUCTION— 

infant    responsible    for 69 

SEISIN— 

livery  of,  by   lunatic — effect 9 

SET-OFF— 

waiver  of  tort — suing  in  assumpsit 490 

against  assignee  in  insolvency 507 

as  to  laborers — assigned  his  wages 507 

by  owner  of  building — against  contractor 640 

SHIPPERS— 

rebates  to,  by  railroad  companies 323 

SHOPPING— 

by   infant — validity   of   contracts 38 

SICKNESS— 

when  it  will  excuse  performance  of  contract 589,  592 


932 


INDEX- 
SIGNATURE—  Sec. 

of  telegram — under  the  statute  of  frauds 85 

of  auctioneer  or  broker  to  sale — when  sufficient 87 

to   memorandum — party  to   be   charged 88 

by  initials  of  party,  valid 89 

under  statute  of  frauds 97 

when  must  be  at  the  end  of  the  writing 97 

signing  by  both  parties,  under  the  statute  of  frauds 98 

•    by  agent  under  the  statute  of  frauds 99 

agent  must  have  authority  to  sign 99 

as  "administrator"  or  "executor" — personal  liability 120 

SINGERS— 

specific    performance    of    contract 677 

SITUS— 

of  personalty 407 

legal    and    actual 407 

SLOT  MACHINES— 

use  of — whether  gambling 244 

SMELTING  COMPANY— 

contracts  with — cannot  be  assigned 519 

SMUGGLING— 

contracts — validity    of , 414 

SOBRIQUET— 

as  signature 85 

SOLDIERS— 

cannot  be  favored  as  against  other  citizens 198 

SPECIAL  CONTRACTS— 

part    performance — recovery   473,  474 

wilful  default  to  furnish  services — effect 474 

default  not  wilful 475 

SPECIAL  PROMISE— 

of  administrator  or  executor — when  required  to  be  in  writing.  .  .  120 

SPECIFIC  PERFORMANCE— See  Performance. 

part   performance — when   enforced 107 

of  oral   agreement  to  devise 466 

when  enforced — contracts  to  devise B67 

requisites  of  contract — building  contracts 668 

mutuality  of  obligations  and  remedy 669 

contracts  as  to  personal  property 670 

when  there  is  an  adequate  remedy  at  law 671 

change  of  conditions  of  one  of  the  parties 672 

sale   of   patent   rights 673 

sale   of   personalty 674 

sales  of  chattels  having  a  special  value 675 

supervision  of  the  court — continuous  acts 676 


933 


INDEX. 

SPECIFIC  PERFORMANCE— (confWMed)  Sec. 
contracts     involving  the  exercise  of  skill,  personal  labor  and  cul- 
tivated judgment 677 

tender   of   performance 678 

time  of  performance 679 

contracts   subject  to   conditions 680 

part  performance i . .  681 

SPIRITUAL  MANIFESTATIONS— 

as  evidence  of  sanity 8 

STAKEHOLDER— 

right  to  pay  over  money 502 

STATIONS— 

locating   by   railroads — rights 302 

STATUTE  OF  FRAUDS— 

when  created 76 

requirements  of 76 

section  four — terms  of 77 

section  seventeen — terms  of 78 

as  to  contracts  created  by  law 79 

as  to  executed  contract 80 

modification  of  written  contract  within 81 

contract  executed   on   one   side 82 

STOCK  EXCHANGE— See  Board  of  Trade. 

STOCKHOLDERS— 

of  bank — liability  for  future  debts 541 

running  of  the  statute  of  limitations 630 

STOCKS— 

shares  of,  bought  at  fictitious  prices — effect 163 

purchase  of,  on  board  of  trade — when  valid 252 

STOPPAGE  IN  TRANSITU— 

assignment  of  bill  of  lading — effect 510 

STREET  CARS— 

failure  to  run — by  act  of  God 588 

STRIKERS— 

right  of,  to  persuade  non-union  men  to  leave  employment 336 

boycott   by    State 341 

STRIKES— 

right    to    picket 336 

SUBJECT-MATTER— 

desoiption  of,  in  memorandum — under  statute  of  frauds 92 

of  contract  non-existing —  performance  of  contract 571 

ceasing  to  exist 572 

SUBSCRIPTION— 

to  pay  debt  of  church — made  on  Sunday — work  of  charity 190 

conditional  subscription  to  stock 302 

by   parties   to   establish   business 383- 

934 


INDEX. 

SUBSCEIPTION— (cOM^WMed)  Sec. 

revocation   of — joint  debtors 384 

to    establish    business — liability 384 

validity  of  contracts  of 385 

validity   of — joint   debtors 385 

to  corporation  stock — running  of  the  statute  of  limitations 630 

SUCCESSION— 

interstate — taxation 395 

SUICIDE— 

of  insane  person — collecting  life  insurance 16 

by  impulsive  insanity  of  injured — effect  on  policy 17 

of  insured — knowledge  of  right  and  wrong — English  and  American 

doctrine 18,  19 

of  insured  "  sane  or  insane  " 20 

SUNDAY  CONTRACTS— 

contracts  made  outside  of   State 412 

SUNDAY  LAWS— 

contracts  made  on  Sunday  at  common  law — eflFect 180 

constitutionality  of  Sunday  law 181 

as  to  interstate  commerce 182 

prohibited  contracts 183 

contracts  not  prohibited  by  statute 184 

negotiation  on  Sunday — contract  completed  on  Monday 185 

contracts  within  the  statute 186 

ordinary  callings 187 

works    of    necessity 188 

working  on  Sunday  to  prevent  loss  on  week  day 189 

works   of   charity 190 

traveling  on  Sunday 191, 

ratification   of   Sunday  contracts 192 

third  persons 193 

as  to  third  persons — contracts  dated  on  Sunday 194 

contiacts   executed   on   Sunday 195 

SURETY— See  Principal  and  Surety. 

when    surety    may    claim    contribution 388 

payment   of   principal's   debt 389 

right  to  receive  contributions 390,  391 

when  action  can  be  brought  against  co-surety 391 

action  by — must  the  principal  be  insolvent 392 

discharged  by  act  of  promisee 393 

married  women  as 401 

contibution   of — joint   or    several 434 

SURETYSHIP— 

infant's  contract  of,  is  voidable 27 

inf orcement    of    contribution 434 


935 


INDEX. 

SUKVIVORSHIP—  Sec. 

of   joint   liability 371 

•     in  equity — joint  liability 372 

of  interest — joint  obligees 380 

TAXATION— 

lex  fori — action  in  assignee's  name 406 

TAXES— 

legal   interest  and   taxes   taken — usury 227 

payment  of — mistake  of  law 452 

payment  of — illegality  of 456 

when  payment  is  voluntary 456 

paid  under  duress — recovery 496 

imposed  on  selling  goods 551 

upon  interstate   commerce 552 

when  is  the  imported  property  incorporated  with  the  general  mass 

of   property,    for    taxation 553 

statute  incorporating  imported  goods — validity 554 

statute   which   is   retrospective 557 

TEACHERS— See  School  Teachers. 

TELEGRAMS— 

as  memorandum  to  charge  the  sender • 85 

when  may  be  sent  on  Sunday — necessity 188 

TELEGRAPH  COMPANIES— 

must  serve  all  customers  alike 298 

whether    common    carriers 296 

limiting  liability  in  sending  message — validity  of 297 

repeating    message — effect 297 

telegraph — definition 307 

discrimination    by — effect o07 

agreeing  to  an  impossible  contract 568 

breach  of — damages G92 

breach   of — mental    suffering 693 

TELEPHONE  COMPANIES— 

whether    common    carriers 296 

rights  in  transmitting  message  for  mistake 298 

must   not   discriminate 307 

TENANTS  IN  COMMON— 

guardian  and  ward — partition — method , 37 

TENDER— 

of  performance — when  necessary 678 

TENURE— 

of  public  office — legislature  may  control 426 

TERMS— 

of  memorandum  required  by  the  statute  of  frauds 91 


936 


INDEX. 

THEATER  TICKET—  Sec. 

whether   a   mere   license 509 

whether  assignable 509 

whether  a  contract 509 

THEATRICAL  MANAGER— 

rights  of — tickets  to  public  entertainments 509 

THEFTS— 

stolen  money  in  the  hands  of  a  third  party  with  notice 502 

of  bill  of  lading — rights  of  assignee  of 512 

THREATS— 

when  intimidation 336 

of  imprisonment — duress 499 

TICKERS— See  Board  of  Trade. 

right  to  use   information   of 339 

TICKETS— 

prohibition  of  sales  except  by  lawfully  authorized  agents 173 

scalping    contracts — when    void 173 

selling  theater  tickets  on  Sunday 186 

of   railroad — limitation   by   notice 292 

non-transferable — when  assigned 292 

of  railroad — as  a  contract 293 

limitations  on 293 

railroad   tickets   with   coupons 294 

TIME— 

to  ratify  infant's  contract 55 

what  is  a  reasonable  time  to  avoid  an  infant's  contract 59 

one  year  from  the  making  of  a  contract — when  within  the  statute 

of  frauds 135,  136 

to   assign    future   wages 515 

extending  in  ease  of  redemption 566 

to   rescind   contract 596 

what  is  reasonable,  to  return  chattels  bought  on  option 613 

no  limitation  for  the  term  of  hiring 622 

as  between  principal  and  agent — as  to  term  of  hiring 622 

continuing  contracts — when  statute  of  limitations  begins  to  run . .  627 

running  of  the  statute  of  limitations 629 

parties  under  disabilities — running  of  the  statute  of  limitations.  .  629 

of  performance  of  contract 641 

of  payment  of  debt  payable  on  demand 641 

day  fixed  for  performance 041 

of    performance    of   work 647 

waiver  of 648 

of    performance — specific    performance 679 

TIME  AND  SPACE— 

limitations  of  in  contracts  in  restraint  of  trade.  .  .  .309,  310,  311,  312 

313,  314,  315 

937 


INDEX. 

TITLE—  Sec. 

coming  from  an  insane  person 24 

transmitted  by  deed  of  infant 57 

guardian's  title  to  ward's  property 74 

of  real  estate  by  verbal  agreement 103 

TOLLS— 

implied  contract  to  pay 423 

action  to  collect — assumpsit 423 

TORT-FEASORS— 

several — waiver    of    tort 495 

liability    of    each 495 

TORTS— 

notes  of  infants  for,  are  valid 34 

of  infants — liability 67 

growing  out  of  contract  relations 68 

infants  liable  for 69 

promise  to  pay — within  the  statute  of  frauds 122 

joint    wrongdoers — contribution 394 

waiver  of — suing  in  assumpsit 464,  486 

when  waiver  may  be  made 487 

TRADE  AND  PROFESSIONS— 

contract  prohibited  by  statute 196 

sealing  of  weights  and  measures 197 

brokers — peddlers 198 

lawyers 199 

physicians    200 

school  teachers  201 

articles   of   commerce — sales   without  inspection 202 

minors — prohibited  work 203 

contracts  valid  in  part  and  void  in  part 204 

sale  of  intoxicants  without  license 205 

TRADES  UNIONS— 

ogranization   of   workingmen 333 

are  lawful  combinations 334 

liability    of    for   interference 335 

picketing  by 336 

blacklisting 337 

coal   strike   combination 338 

TRADING  STAMPS— 

issuing — whether  gambling 270 

statutory  control — whether  constitutional 270 

giving  them,   not  a  lottery 270 

TRUCK  STORES— See  Truck  System. 

TRUCK  SYSTEM— 

regulating   payment   of   wages 1,  2 

in  England 3 

938 


INDEX. 

TRUST  DEED—  Sec. 

executed  on  Sunday — delivered  on  Monday — as  to  validity 185 

TRUSTS— 

holding  property  in  trust — suit 358 

personal  trust  cannot  be  assigned 519 

running  of  the  statute  of  limitations 630 

enforcement  of  a  contract  to  devise 667 

TURNPIKE— 

collection  of  tolls  due 423 

assumpsit  may  be  brought  for  collection  of  tolls  due 423 

UNFAIR  TRADERS— 

listing  by  trades  unions 335 

UNION  ASSOCIATIONS— 

board  of  education  compelling  contractor  to  employ  union  laborers  317 

organized  to  protect  the  members 327 

UNION  LABOR— 

stipulation  that  only  union  labor  shall  be  employed — effect 301 

UNITED  STATES  SUPREME  COURT— 

jurisdiction 531 

USE  AND  OCCUPATION— 

of  land — covenants  valid Ill 

USURIOUS  CONTRACTS— 

definition 206 

statutory  provisions   207 

intent  is  essential  to  constitute  usury 208 

lending  and  borrowing  money 209 

legal  interest — commission 210 

agent  of  the  party  loaning 211 

discount  of  accommodation  paper 212 

taking  personal  property  as  interest 213 

cash  and  credit 214 

in  purchase  price  of  land 215 

bonus  for  consideration  for  making  the  loan 216 

antedating  a  note — interest  payable  in  advance 217 

hiring   or    renting   securities 218 

building   and   loan    association 219 

building  association  must  keep  within  the  statute 220 

premium    and    exchange 221 

compound    interest 222 

statutory    provisions 223 

interest  coupons 224 

recovering   back   usury 225 

computation    of    interest — compounding 226 

taxes  and  exchange 227 

commission    and    discount 228 

attorney's  fees 229' 

93& 


INDEX. 

USURIOUS  CONTRACTS— (con^iMwed)  Sec. 

sale   of   security — innocent   purchaser 230 

absolute  sale  with  agreement  to  repurchase 231 

national  banks 232 

mistake   in   taking   interest 233 

renewal  notes  and  mortgages 234 

contract  having  an  independent  existence 235 

evidence — sufficiency 236 

who  may  plead  usury 237 

waiver  of  usury 238 

burden   of   proof 239 

place  of  payment  of  interest — conflict  of  laws 240 

payment  may  be  controlled  by  contract 241 

computing  interest  at  stated  times 242 

the  law  of  another  State  must  be  pleaded 243 

USURY — See  Usurious  Contracts. 

definition 206 

statutory  provisions 207 

taking  personal   property  as   interest 213 

making  different  prices  for  cash  or  on  credit 214 

who  may  plead 237 

waiver  of 238 

burden  of  proof  to  establish 239 

usurious  contracts — law  of  another  State 417 

intention  of  parties 417 

does  the  lex  loci  solutionis  govern  on  judgment 417 

making  contract  void — validity  in  other  States 418 

as   to    retrospective    laws 532 

VALUE  RECEIVED— 

expressing  consideration 94 

VENDOR  AND  VENDEE— 

insane  vendor  selling  to  bona  fide  purchaser — validity  of  sale 22 

bona  fide  purchaser  of  the  grantee  of  a  lunatic — validity 24 

shopping  by  infant — validity  of  contract 38 

bona  fide  purchaser  from  infant — title  transferred 61 

oral  sale  of  land — purchase  money  paid — recovering  back 109 

taking    back    chattels    after    sale — when    within    the    statute    of 

frauds 140 

performance  of  contract  by  vendor — effect 148 

soliciting  business  from  another 304 

selling  business— restraint  of  trade.. 309,  310,  311,  312,  313,  314,  315 

sale  of  good-will — restraint  of  trade 319 

sale  of  physician's  practice 319 

when  third  party  is  injured  by  negligence  of  vendor 348 

selling  for  smuggling  purposes 414 

receiving  goods  from  one  not  the  original  vendor — effect 478 

940 


INDEX. 

VENDOR  AND  VENDEE— (coji^inwed)  Sec. 

receiving  part   of   the   goods 478 

selling  property  in  contravention  of  the  law — recovery 481 

sale  of  theater  ticket — rights  of  vendee 509 

rights  of  assignee  of  bill  of  lading 510 

sale — impossibility    to   deliver — effect 574 

rights  to  return  goods  by  vendee — sale  by  sample 612 

option  to  vendee  of  goods 613 

owner  of  building  promising  to  pay  seller  of  building  materials .  .  .  663 

specific  performance  of  part  of  contract 681 

selling  articles  for  special  purposes — breach  of — damages 685 

sale  of  articles  not  in  existence 694 

buying  goods  to  resell — breach  by  vendor — damages 698 

WAGERS— 

definition 244 

liability  of  wagers  at  common  law 245 

liability  of,  in  the  United  States 246 

statutory  provisions 247 

in  insurance 266 

assignment  of  policy — valid  in  its  inception — effect 267 

execution  of  party  for  crime — whether  court  will  review 545 

WAGES— 

payment  of — truck  system 2 

payment  monthly 2 

of  emancipated  infant  belong  to  him 29 

father  may  pay  to  children 470 

recovery  for  part  performance 473 

wilful  default  to  work — effect 474 

what  plaintiff  must  show  to  recover 474 

assignment   of   unearned    wages 515 

compelling  corporations  to  pay  employes  weekly 541 

right  to  sue  for,  after  discharge 602 

for    constructive    services 603 

WAIVER— 

of   statute  of   frauds 114 

of   usury — how   waived   238 

of  the  statute  of  limitations — when  against  public  policy 275 

of  right  to  hold  master  liable  for  injury  to  servant 300 

of  an  account  stated 427 

of  tort — suing  in  assumpsit 464,  486,  488,  489 

doctrine  that  the  property  must  be  sold 488 

doctrine  that  the  property  need  not  be  sold 489 

of  tort  by  agent — bringing  assumpsit 494 

no  waiver  of  exemptions  of  married  man 515 

of  building  contract  by  accepting  building 579 

the  statute  of  limitations  may  be  waived 637 

941 


INDEX 

WAIVER—  ( continued )  See. 

of  time  of  performance  of  work 648 

by  owner  of  building  by  acceptance 664 

of  condition  of  contract 680 

WARD— 

and  guardian  tenants  in  common — method  of  partition 37 

right    of    guardian 72,     73 

WAREHOUSE  RECEIPTS— 

whether   negotiable 513 

nature  of 514 

WAREHOUSES— 

kept  by  individuals — establishing  of  maximum  rates  by  State.  .  .  .  538 

WARRANT— 

of  minor  to  confess  judgment  is  void 28 

WARRANTY— 

on  Sunday — sale  of  goods  when  valid 412 

sales  by  samples 612 

WATER  COMPANIES— 

rights   of   third   persons 349 

as    to    statutory    provisions 349 

assignment  of  contract  by  city 350 

WEIGHTS  AND  MEASURES— 

statutes  providing  for 197 

WORK  AND  LABOR— 

as  part  payment  in  parol  agreement  to  convey  land — effect 110 

contracts  of — when  within  the  statute  of  frauds 146 

chattels  in  existence  and  goods  to  be  manufactured — when  within 

the  statute  of  frauds , 146 

on   Sunday — what  included 187 

of  necessity 188 

on  Sunday  to  prevent  loss  on  week  day — effect 189 

works  of  charity  on  Sunday 190 

traveling  on  Sunday 191 

minor  doing  prohibited  labor 203 

organization  of  laborers  for  self-protection.  .  .  .■ 327 

organization  of  trades  unions 333 

trades  unions  are  lawful 334 

discrimination  by  laborers  against  employers 335 

blacklisting  of  laborers 337 

statute  prohibiting  blacklisting 337 

coal  strike  commission  condemns  boycotts 338 

laborers  using  unlawful  means  in  strikes  to  persuade 338 

malicious  interference  between  master  and  servant 343 

alien   labor   acts — object   of 422 

gratuitous — implied  contract 458 

to  members  of  same  family 458 

942 


INDEX. 

"WORK  AND  LABOR— (continued)  Sec. 

by  members   of  family 460 

of  a  supposed  wife — recovery  for 461 

recovering  for  extra  services 462 

recovery  on  quantum  meruit 473 

wilful  default  to  work — effect  on  wages 474 

default  not  wilful — recovery  for  part  performance 475 

contract  for  personal  service 475 

substantial  performance 477 

recovery  for  services  under  void  contract 479 

failure  to  pay  as  agreed  to 481 

performing  work  for  another 483 

in  case  of  flood  or  conflagration 483 

physician  in  emergency 484 

burial  of  the  dead — implied  contract 485 

set-off  by  laborer,  who  has  assigned  his  wages 507 

assignment  of  labor  of  services 515 

contracts  for  personal  skill  or  services  cannot  be  assigned 519 

wrongful   discharge   of   employe 602 

constructive  service 603 

services  to  be  performed  in  the  future 604 

duty  of  employe  to  seek  other  work 605 

offer  to  render  service 606 

mode  of  rescission  by  employer 607 

employing  another  to  work  on  personalty 608 

employing  another  to  affix  machine  to  realty 609 

damages  recoverable 610 

after  notice  of  rescission — duty  of  employe 611 

continuing  contract  to  work — effect  of  statute  of  limitations 627 

performance    of — furnishing    materials 639 

substantial    performance — good    faith 640 

time   of  performance 641 

time  of  performance  of  work 647 

waiver   of  time   of   performance 648 

labor  must  be  performed  in  a  workmanship  manner 650 

receiving   benefits   of   work — liability 651 

partial  payment-  as  evidence  of  acceptance  of  work 652 

sufSciency  of  performance  of  work 653 

manufacturing  articles  according  to  order 654 

substantial  performance 655 

matters    excusing   non-performance 656 

implied  condition  as  to  contingent  impossibility  of  performance.  .    657 

implied  condition  of  contract 658 

when  implied  conditions  attach  to  a  contract 659 

what  constitutes  a  breach  of  building  contract 662 

risks  during  performance  of  building  contract 665 

943 


INDEX. 

WORK  AND  LABOn— (continued)  Sec. 

part  performance 666 

specific  performance  of  labor  contracts 668 

specific  performance  of  contract  to  labor 676 

involving  skill 677 

cannot  be   specifically   performed 677 

breach  of  contract — laborer  must  protect  himself — duty  to  seek 

other  work 686 

for  the  use  of  some  special  instrumentality 687 

breach  of  contract  by,  not  furnishing  logs 687 

labor   or   a   sale — personal   skill 694 

WRONGDOERS— 

contribution  among 437,  438 

when  one  party  is  innocent — -contribution 438 

cannot    have    indemnity 439 

having    adverse    possession    of    land — taking    stone    and    trees — 

remedy 493 


(Total  number  of  pages  952.) 


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